Category: Ethics

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Judge Bates Dismisses Rangel’s Lawsuit

Last week, as expected, Judge Bates dismissed Representative Rangel’s lawsuit against the Speaker, the Clerk and various former members and staff of the Ethics Committee. As the court notes in conclusion, “everything on Rangel’s wish list implicates insurmountable separation-of-powers barriers to the Court’s exercise of authority,” with the “most problematic [being] Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him.”

This is certainly correct, and I think the court’s 49-page opinion gives Rangel’s arguments rather more attention than they deserve. Dismissal was more than justified by the following points made in the opinion:

  1. Rangel sued the wrong party. The court points out that “Rangel’s reputational harm was not caused by any of the defendants but by the House as an independent body- and it is not a party to this action.” (slip op. at 11)
  2. An order against these defendants would not have redressed Rangel’s alleged injuries because the defendants have no power to alter the House’s Journal (the relief requested by Rangel) on their own. (slip op. at 35)
  3. Even if the House had been a party, the court lacks the power to order the House to take any action that would redress Rangel’s alleged injuries. “This Court has the same ability to order the House to edit its own Journal as it does to order the House to discipline one of its Members or to promulgate a particular Rule- none.” (slip op. at 35-36)
  4. All of the defendants were in any event immune under the Speech or Debate Clause. (slip op. at 36-44)

Unfortunately, Judge Bates was not content to rest his opinion on these points but also engaged in an extensive, unnecessary and rather confusing discussion of the political question doctrine. He concludes that Rangel’s claims are barred by the political question doctrine, but only because Rangel failed to state a viable constitutional claim in the first place. The political question doctrine, however, is designed to identify situations in which a non-judicial body has the final say on a constitutional issue. If it applies only because the court finds no constitutional issue to resolve, invoking the doctrine seems pointless. The court seems to think that directly reviewing Rangel’s claims on the merits, rather than as part of the political question analysis, would evince a “lack of disrespect” (I think it means lack of respect) for the House, but the price of this politeness is to make the political question doctrine even murkier than it is already.

On balance, though, this opinion should stand as a caution against challenging House disciplinary proceedings in court, and that’s a good thing. One final note—someone should bring to the court’s attention that Nixon v. United States, 506 U.S. 224 (1993) involved Judge Nixon, not former President Nixon. See slip op. at 33 (referring to “an ex-President challenging his impeachment in the courts.”).

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How the House Deals with Cocaine Possession

As reported by Roll Call and various other outlets, Representative Trey Radel is to appear in D.C. Superior Court tomorrow to face charges of misdemeanor possession of cocaine. No one seems very clear on how this matter will be treated in the House so I think it is worth pointing out that House rules require the Ethics Committee to take action here.

House Resolution 5, which adopted rules for the 113th Congress, provides in Section 4(e) that “[t]he text of House Resolution 451, One Hundred Tenth Congress, shall apply in the One Hundred Thirteenth Congress in the same manner as such provision applied in the One Hundred Tenth Congress.” House Resolution 451, in turn, requires that:

          [W]henever a Member of the House of Representatives . . . is indicted or otherwise formally charged with criminal conduct in a court of the United States or any State, the Committee on [Ethics] shall, not later than 30 days after the date of such indictment or charge-

 (1)        empanel an investigative subcommittee to review the allegations; or

(2)        if the Committee does not empanel an investigative subcommittee to review the allegations, submit a report to the House describing its reasons for not empaneling such an investigative subcommittee, together with the actions, if any, the Committee has taken in response to the allegations.

As noted in the House Ethics Manual, Resolution 451 thus requires some action by the Ethics Committee whenever a Member is charged with criminal conduct, and “does not distinguish between felony and misdemeanor criminal charges.”

 

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Congressional Release of Classified Information and the Disciplinary Power

In reference to my last post, it has been suggested by one of the more faithful commenters at Balkinization, Shag from Brookline, that the Speech or Debate Clause might bar a house of Congress from taking disciplinary action against a member who unilaterally releases classified information without authorization. Shag asks: “Can action by Congress trump the specific Speech and Debate [sic] clause? Is such Speech and Debate permitted to be questioned in a house of Congress with such action but not in any other Place? Does the First Amendment speech clause enhance or detract from the right (privilege) of a member of Congress under the Speech and Debate [sic] clause?” Shag goes on to ask how the original understanding of and historical practice under the Speech or Debate Clause might be applied in the context of “the fairly recently evolved national security state.”

As legal questions go, the ones Shag asks with regard to the Speech or Debate Clause have very straightforward answers. The text of the Clause is clear that it applies only in “any other Place,” i.e., outside the legislative branch. See, e.g., Howard v. Office of the Chief of Administrative Officer, No. 12-5119 (D.C. Cir. June 28, 2013) (“because the Office of Compliance process occurs within the Legislative Branch, not in a ‘other Place,’ the Speech or Debate Clause does not pose an issue in those cases”) (Kavanaugh, J., dissenting); see also United States v. Brewster, 408 U.S. 501, 517-21 (1972) (discussing the fact that misconduct protected by the Speech or Debate Clause may nonetheless be punished by either house under its disciplinary power). As far as I know, no member has ever asserted the Speech or Debate Clause, either as a defense or as a protection against inquiry, in the course of a congressional disciplinary proceeding. Nor has any scholar, court or anyone else with expertise on the Clause suggested that it could apply in a congressional proceeding. Put simply, a member who faces disciplinary action as the result of disclosing classified information can take no solace in the Speech or Debate Clause.

The question with regard to the First Amendment is slightly more complicated. We recently discussed, in the context of the Rangel case, the question of whether and to what extent constitutional protections apply in congressional disciplinary proceedings. As Outside Counsel’s report indicates, even if such protections apply, they cannot be applied in a rigid manner that ignores the unique nature, purpose and history of congressional disciplinary proceedings. Thus, while one can imagine a plausible First Amendment defense in a congressional disciplinary proceeding (say, for example, if the House or Senate sought to punish members who give interviews to a disfavored press outlet), it is unthinkable that the First Amendment would prevent the House and Senate from enforcing rules that are broadly consistent with traditional limitations on member speech. For example, members cannot claim a First Amendment right to violate rules of decorum and debate, by say interrupting another member who has the floor, using foul language in congressional proceedings, or insulting the President.

Is there a colorable argument that disclosure of classified information by a member deserves First Amendment protection from congressional discipline, perhaps because of the importance of such disclosure in checking “the fairly recently evolved national security state”? Put me in the deeply skeptical camp on that one. Both the House and Senate have had specific prohibitions against unauthorized disclosure of classified information for decades. Punishing members for unauthorized disclosure of secret information goes back even further. On December 31, 1810, it is reported: “The Senator from Massachusetts (Mr. Pickering) was censured for reading from confidential documents in the Senate in open session before the injunction of secrecy had been removed.” Riddick’s Senate Procedure 270 n.1. It is hard to imagine the House and Senate intelligence and ethics committees agreeing that individual members have a constitutional right to violate congressional secrecy rules just because they believe the public interest requires it.

Whatever the merits of such a constitutional argument, however, it will be weaker if a member makes it without first attempting to use the established congressional procedures for releasing classified information. This was my original point, and if Professor Ackerman or anyone else disagrees, they should explain why.

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An Unwarranted Attack on the House and the Ethics Committee

In an oddly speaking complaint, Representative Charlie Rangel, represented by New York attorney Jay Goldberg, has filed suit in federal court against the Speaker, the Clerk and several former members and staff of the House Ethics Committee, including Zoe Lofgren, the former Democratic chair, and Jo Bonner, the former Republican ranking member. Cutting through the ample legal verbiage, Rangel’s complaint comes down to this: the court should set aside his December 2, 2010 censure by the House of Representatives because that discipline stemmed from a recommendation by the Ethics Committee that was tainted by “numerous flagrant, knowing and intentional violations of Plaintiff’s Due Process rights and his other fundamental constitutional rights.”

If a court could consider these claims, Rangel’s chances of prevailing on them would be extremely remote. They appear to be based entirely on internal memoranda written by Blake Chisam, then the staff director and chief counsel of the Ethics Committee, about alleged misconduct of two subordinate lawyers, Morgan Kim and Stacy Sovereign, who worked on both the Maxine Waters and Rangel cases. Rangel’s complaint attaches these memoranda (which we have discussed before) and describes them as “essential reading.” Complaint at ¶ 38.

The Ethics Committee previously retained Outside Counsel Billy Martin to investigate these precise allegations in the context of the Waters case. Martin conducted an extensive investigation, at substantial taxpayer expense, and reported to the Committee in September 2012 that there was no due process violation in the Waters matter. Although the report does not analyze the allegations with respect to the Rangel case, its reasoning strongly suggests the same result would obtain there.

Following the issuance of the Outside Counsel report, the Committee wrote to Rangel, rejecting his request to re-open his case. The letter begins by observing “[w]e have received and considered the numerous communications from your counsel, Mr. Jay Goldberg” (emphasis added).  It then states “it is the unanimous opinion of the Committee the there is no legal or factual basis supporting a conclusion that you have been deprived of any constitutional rights in your proceedings.” It emphasizes that this opinion was based on the analysis of its current non-partisan staff (which was not involved in the original Rangel matter) and was consistent with the analysis of Outside Counsel in the Waters case. It concludes with the suggestion that Rangel and his attorney not make “any further public comments” that are “misleading” or “inconsistent with the facts or law in this matter.” The Committee’s irritation with Rangel and Goldberg is barely disguised.

Continue reading “An Unwarranted Attack on the House and the Ethics Committee”

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Recusal Confusion- A Final Post on the Waters Case

Now I will turn to the other major issue in the Waters case, which relates to Outside Counsel findings that (1) Representative Waters properly recused herself and her office from the OneUnited matter following the September 9, 2008 meeting, and (2) Mikael Moore, her chief of staff (and grandson), violated her instructions and improperly remained involved in the OU matter. As discussed below, both of these conclusions are problematic.

Following the September 9 meeting, Waters realized that her involvement in OneUnited Bank’s “asking for money” would present a conflict of interest or appearance of impropriety. This realization was likely triggered by (1) a telephone call from Treasury Secretary Paulson and (2) learning what had transpired at the September 9 meeting.

Continue reading “Recusal Confusion- A Final Post on the Waters Case”

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The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)

Now let us turn to one of the two key issues in the Waters ethics case: whether Representative Waters violated any ethics rules when she called Treasury Secretary Paulson to arrange the September 9 meeting.

Outside Counsel’s ability to analyze this question is compromised by its unwillingness to confront the reality of what happened at the September 9 meeting, as described in my last post. Outside Counsel treats the matter as if NBA (the minority bank trade association) had approached Waters and asked her to set up a routine agency meeting on an issue that widely affected its membership. Based on that framing of the issue, Outside Counsel concludes that there was nothing inappropriate (or even questionable) about Waters’ actions.

Unfortunately, this is not what happened. Waters was not approached by NBA professional staff, or by a group of minority banks, but by two senior officials of a single bank, OneUnited (in which her husband happened to own $350,000 worth of stock). Nor was she merely asked to set up a routine meeting, but to call the Treasury Secretary personally. This is obviously not an everyday constituent service (Waters stated in her OCE interview that “you don’t use your chits for nothing, you call when there is an important issue”) and Outside Counsel does not cite any evidence that Waters had ever arranged a similar meeting for anyone else.

Continue reading “The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)”

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The Waters Outside Counsel and the September 9, 2008 Treasury Meeting

To begin unpacking the report of Outside Counsel Billy Martin on the matter of Representative Maxine Waters, I will start with the meeting that took place on September 9, 2008 at the Treasury Department. This meeting is key to understanding the events that took place, and the evidence is very clear as to what transpired. Yet for some reason Outside Counsel seems more interested in obscuring than in illuminating these facts.

The September 9 meeting was memorialized in this one-page memorandum dated that same day and sent by Erika Jeffers, a House Financial Services Committee counsel, to Chairman Barney Frank.

Continue reading “The Waters Outside Counsel and the September 9, 2008 Treasury Meeting”

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The Notebook- House Ethics Committee Edition

Fans of the Maxine Waters ethics case (you know who you are) may recall that one of the controversies between Blake Chisam, the former Staff Director and Chief Counsel of the Ethics Committee, and the two senior counsel leading the Waters investigation (Morgan Kim and Stacy Sovereign), involved the binders that were handed out to committee members at a November 18, 2010 meeting. According to Chisam’s late 2010 memorandum to Chairman Lofgren, providing the reasons for terminating Kim and Sovereign:

            At that meeting, white binders were handed out to all the Members of the adjudicatory subcommittee, as well as the Chair’s and Ranking Member’s designated counsels. They were being passed out from a box. The Ranking Member’s counsel was helping to hand the binders out. Since the Waters staff [Kim and Sovereign] served as advocates, they could not be present at the ASC [Adjudicatory Subcommittee] discussion absent an invitation for participation by respondent. The binders were prepared by the Waters staff for the meeting. There were copies of the binder that were flagged, highlighted and contained handwritten notes and explanations when they came out of the box. The marked up copies were provided to Republican Members. Democratic Members did not receive annotated binders.

 So there you have it. Selective highlighting. Discriminatory annotation. Ex parte flagging. Such serious charges require a full investigation, preferably conducted by an outside lawyer whose hourly fee exceeds the average American’s mortgage payment.

Fortunately, we now have the report of Outside Counsel Billy Martin, who has cracked the case of the great notebook caper wide open. His report states (page 21):

During the course of the Outside Counsel’s review, Outside Counsel located  and reviewed what Outside Counsel believes are those very notebooks.

Eureka! (I hear you cry). Outside Counsel has located the very notebooks. The instruments of the crime. The murder weapon itself, so to speak. Surely the perpetrators of this dastardly deed will no longer go unpunished. Read on:

Outside Counsel determined that only one tab and minimal highlighting was placed on the notebooks in question. In addition, the designee to the Ranking Member testified that she had highlighted the binders to assist the Republican Members to more easily locate the documents that were going to be discussed at the meeting. As this was done by the designee to the Ranking Member, who was acting within the scope of her services and authority, and not by a staff member to assist one party, there is nothing noteworthy about the highlighted binders.

Nothing “noteworthy,” get it? Outside Counsel is Hercule Poirot and Jimmy Kimmel rolled into one. Sadly, however, our mystery seems to have gone from Murder on the Orient Express to Murder by Death.

Perhaps even sadder is the fact that absolutely nothing turned on the resolution of this controversy. Even if Kim and Sovereign had been responsible for marking up the binders, and even if the marking had been for a more nefarious purpose than helping the Republican Members more easily locate the relevant documents, it would not have changed the handling of the Waters case going forward. Martin would still have recommended the same action, namely the recusal of those committee members involved in the Waters matter in the prior Congress.

Gee, if only someone could have pointed that out in advance.

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Unclear and Not All that Convincing

The long-running ethics investigation of Representative Maxine Waters neared an end today with a public hearing before the “Waters Committee” (a special version of the Ethics Committee set up specifically for the Waters matter). Chairman Goodlatte announced that the committee had received the report and recommendations of Outside Counsel Billy Martin, who advised that there was insufficient evidence to justify establishing an Investigative Subcommittee to proceed further with respect to the matter, but that Martin has made “perfectly clear” that “he believes that certain specific actions of Mikael Moore, the Chief of Staff to Representative Waters are in fact violations of the standards and rules of the House regarding conflict of interest.”

If Martin believes that Moore violated the standards and rules of the House, why didn’t he recommend an Investigative Subcommittee? Goodlatte explained: “To be clear, Outside Counsel does not believe the evidence on the record, without making any credibility determinations, would prove Mr. Moore’s knowledge of the conflict at that time by clear and convincing standards. This is principally because Mr. Moore has explicitly denied such knowledge. However, Mr. Martin has been clear about his concerns regarding Mr. Moore’s credibility throughout this process, and has recommended that the Committee make its own credibility determinations to decide if any action is appropriate.”

This isn’t all that clear to me, but what I gathered from sitting through the hearing is this: during the course of the investigation, Moore answered certain questions in a way that Martin does not find credible. Martin, however, does not believe that he can prove that these answers are false by “clear and convincing evidence,” which is the evidentiary standard applicable to imposing discipline by the House. Accordingly, Martin suggests (but does not recommend) that the committee consider issuing a letter of reproval, which is a rebuke from the committee itself that need not meet this high evidentiary standard.

This strikes me as an unusual approach. My impression is that letters of reproval are used for conduct the committee considers inappropriate, but not serious enough to warrant action by the House. They may on some occasions be motivated by the committee’s belief that there was more serious misconduct it cannot prove, but this is rather different from charging the misconduct it cannot prove in the letter of reproval itself. (Imagine a letter of reproval that says “Representative X, the committee believes that you took massive bribes from a foreign power, but we can’t prove it by clear and convincing evidence, so we are issuing this letter instead.”)

On the other hand, it seems clear (if you will pardon the expression) that Moore has brought these problems to a large extent on himself. The purpose of the hearing, which was held at Moore’s request, was to give him an opportunity to convince the committee not to issue the letter of reproval. But instead of simply providing factual testimony supporting, clarifying or amending his prior statements that are in question, Moore essentially acted as his own lawyer, making legal arguments and attacking inconsistencies in the committee’s legal and factual positions. Not surprisingly, members of the committee (other than the genial and entertaining Representative Latourette) did not react well to this approach.

Moore had a lawyer with him, but he said almost nothing. One wonders why the lawyer didn’t handle the legal argument, or at least explain to Moore the difference between being a witness and an advocate. Perhaps having counsel representing Moore and Waters jointly was not such a good idea, as the committee has often noted before.

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House Rules on Employment Negotiations and Recusal: the Case of Representative Cardoza

Representative Cardoza of California announced earlier this week that he would be resigning from Congress and joining the law firm of Manatt Phelps. Manatt apparently jumped the gun a bit and listed Cardoza yesterday on its website as a managing director in its public policy practice, even though Cardoza had not actually resigned yet, according to this Politico article. (Manatt subsequently removed the listing). Politico says that Cardoza was going to submit a letter of resignation effective midnight yesterday, although the Clerk still has him as a Member of the House as of this afternoon.

So that’s a little gauche, but were any laws or rules violated? There is no prohibition on former Members of Congress going to work for lobbying firms, although the post-employment law forbids them from lobbying the legislative branch for a period of one year after they leave office. Nevertheless, there are many things that they can do even during this one-year “cooling off period.” As explained in this House Ethics Committee memorandum, a former Member may immediately “aid or advise clients (other than foreign governments or foreign political parties) concerning how to lobby Congress, provided the former Member makes no appearance before or communications to Members or employees of Congress.” The former Member can also lobby the executive branch and state governments during this period.

We have previously discussed whether it is appropriate for Members of Congress to resign for personal convenience and concluded that while perhaps there should be a norm/rule against this, it is not currently prohibited.

So that leaves the question of whether Cardoza properly complied with House Rules regarding employment negotiations and recusal. As explained in the Ethics Committee memorandum, “Members must notify the Committee within three (3) business days after they commence any negotiation or agreement for future employment or compensation with a private entity.” The definition of what constitutes a negotiation is somewhat vague, but this doesn’t matter much for our purposes, since we don’t know what communications Cardoza had with Manatt or when they occurred.

What we do know is that Cardoza filed a Notification of Negotiations or Agreement for Future Employment Form with the Committee on July 30. The form indicates that the negotiations began that same day, July 30, which I suppose is possible. I would note, however, that Cardoza’s last vote in the House appears to have been on July 25 (Roll Call Vote 518). He did not vote in any of 38 roll call votes that the House took on July 26, July 31, August 1 or August 2.

Of course, we don’t know why Cardoza missed these votes, but it seems like a reasonable surmise that participating in some or all of these votes would have raised ethical questions. The Committee advises that “Members are strongly encouraged to abstain from voting on legislation that provides a benefit targeted to any entity with which the Member is negotiating or from which the Member has accepted future employment.” Presumably, the Committee would look askance at a Member voting with respect to legislation on which his prospective future employer was lobbying. Given the breadth of Manatt’s lobbying practice, it might have been difficult for Cardoza to determine which legislation he shouldn’t vote on, and he may have decided that the prudent thing to do was to stop voting on everything.

If this was the case, Cardoza was required to notify the Ethics Committee of his recusal, and also to provide the Clerk with a copy of his prior Notification of Negotiations form so that the Clerk can make that document public. It does not appear that Cardoza did this because the Clerk never made the notification form public. Thus, there may have been technical non-compliance with this requirement.

All in all, however, if it is true that Cardoza did not begin his negotiations with Manatt until July 30 or shortly before, it seems to me that he complied with the spirit, if not the letter, of the House rules on employment negotiations and recusal.