Category: Ethics

According to a letter sent today by the House Ethics Committee to the Speaker, outside counsel Billy Martin has spent a good deal of time reviewing “allegations that this Committee violated due process rights or rules attaching to Representative [Maxine] Waters.” However, Martin has been unable to complete the due process review because one “necessary witness” has refused to cooperate with Martin’s investigation, and, when the witness was subpoenaed to testify, “communicated to the Committee that the witness would refuse to answer questions on the basis of the witness’s Fifth Amendment privilege.”

The letter states that Martin “has reviewed tens of thousands of pages of documents, and has interviewed current and former Committee Members as well as current and former Committee staff. Each current and former Committee Member and current employee, who was requested for interview, fully cooperated with Mr. Martin.” (emphasis added).

Following the rule of expressio unius est exclusio alterius (look it up), I would say that the witness invoking the Fifth is a former House Ethics Committee staffer. Any bets on who it is?

Update: According to John Bresnahan of Politico, the attorney for Morgan Kim and Stacy Sovereign says that they “both testified willingly and voluntarily before the special counsel and answered all questions asked of them.” So who does that leave?

 

According to the Hill: “Martin was hired in July. 

Since then he has ‘interviewed numerous witnesses, and conducted extensive legal research regarding the nature of due process rights which attach to Members of Congress appearing before this committee,’ according to the committee.”

But not read Point of Order, apparently. Sigh.

In all the hoopla over the House Ethics Committee’s appointment of an outside counsel and the allegations of impropriety in the Committee’s investigation of Representative Maxine Waters, one serious issue has largely escaped attention. Someone leaked to Politico reporter John Bresnahan “hundreds of pages of confidential Ethics Committee emails, memos and notes” relating to the investigations of Waters and Representative Charlie Rangel. These documents, three of which were posted by Bresnahan, formed the basis of his July 18 expose on the infighting between former Ethics staff director Blake Chisam and two former attorneys on the staff, Morgan Kim and Stacy Sovereign.

The leak was an extremely serious violation of House and Committee rules. Under House Rule XI(3)(d), every member and staffer of the Ethics Committee must execute the following oath or affirmation before obtaining access to confidential information:

“I do solemnly swear (or affirm) that I will not disclose, to any person or entity outside the Committee on Ethics, any information received in the course of my service with the committee, except as authorized by the committee or in accordance with its rules.”

The Committee rules clearly prohibit disclosure to persons outside the Committee of information relating to an investigation or any investigative or adjudicatory proceedings and ban making any confidential information public absent “an affirmative vote of a majority of members of the Committee.” See Ethics Committee Rule 7 (b), (c) & (d).

The Committee takes these confidentiality requirements very seriously. Not long ago it fired a staffer who inadvertently put an internal Committee document on a publicly accessible computer network.

Moreover, both House and Committee rules state that “[b]reaches of confidentiality shall be investigated by the Committee and appropriate action shall be taken” (emphasis added). An investigation of this breach, therefore, would seem to be mandatory, not optional.

An interesting question may arise if the source of the leak turns out to be someone who no longer works for the Ethics Committee or the House of Representatives. What powers, if any, does the Committee have to punish the breach of confidentiality in that case? If the answer is none, the Committee may need to consider whether it has adequate policies in place to ensure that departing members or staff do not take with them and subsequently release highly confidential documents or information.

It is unclear whether this leaking is within the scope of the responsibility given to the outside counsel. But someone needs to investigate it.

The contract between the House Ethics Committee and Billy Martin’s law firm, Dorsey & Whitney, provides that “the Chairman of the Committee reserves the right to terminate this contract at any time.”

TPM commented on this provision as follows: “That would all seem quite normal, except of course, part of Martin’s job is to investigate Bonner and other Republicans’ alleged role in the prosecutorial abuse and unprofessional behavior involved in the Waters’ case.” Melanie Sloan of CREW is quoted as saying that this provision “seems surprising given that part of the investigation has to be of Bonner himself.”

I don’t know about that, but I wonder whether it is actually “normal” for the Chairman to be able to terminate a contract with outside counsel. Ethics Committee Rule 6(i) says “Outside counsel may be dismissed prior to the end of a contract between the Committee and such counsel only by a majority vote of the members of the Committee.” Am I missing something, or does the Dorsey & Whitney contract conflict with that rule?

 

 

According to this statement released on July 20 by the chair and ranking member of the House Ethics Committee, the Committee has retained Billy Martin as outside counsel “to review, advise, and assist the Committee in completing the matter of Representative Maxine Waters.”  However, rather than asking Martin to focus on the allegations against Waters, the Committee has directed that his “very first task” will be to conduct a “thorough review” of “serious allegations” regarding the “Committee’s own conduct in this matter.” The statement says that these allegations have been made by “Representative Waters and others,” but does not specify what they are.  It does, however, invite Waters to “clarify her concerns to the Committee and outside counsel.”

I think it is admirable that the Committee has sought an outside review of its own conduct. It is, however, worth asking exactly what Martin is supposed to do. Neither the Committee’s statement nor its contract with Martin’s firm makes this clear.

This July 18 story in Politico delineates a series of charges by Blake Chisam, the Committee’s former staff director, against two lawyers, Morgan Kim and Stacy Sovereign, who worked on both the Waters and Rangel cases.  Both Kim and Sovereign were placed on administrative leave in late 2010, and they have since left the Committee’s employ. Politico posted three internal memos written by Chisam regarding Kim and Sovereign, which it says were among “hundreds of pages of pages of confidential Ethics Committee emails, memos and notes obtained by POLITICO involving the high-profile investigations into Waters and Rangel that for the first time lay out the details of the allegations surrounding the suspensions of Kim and Sovereign.”

Chisam’s memos, which are in the nature of memoranda for the file designed to document the basis for adverse employment action, make a variety of allegations against the two staffers. He accuses them of being incompetent, lazy, unprofessional, dishonest, insubordinate, and biased. (Other than that, they were great). Because of the obviously poisoned personal relationship between Chisam and these subordinates, it is difficult to know how much to credit his allegations. But they undoubtedly raise questions about the fitness of these individuals to serve in such sensitive positions.

Given that Kim and Sovereign have left the Committee, however, their employment status is no longer an issue. It seems odd that the Committee would want outside counsel to investigate these charges (at taxpayer expense) unless they have some broader significance. And it is difficult to see how most of them would. After all, if the Committee decides to proceed with the Waters case, a new team of lawyers will have to review the matter, make its own decisions about what evidence to present and what charges to recommend (as the case was remanded to the investigatory subcommittee), and, if it comes to that, present the case to an adjudicatory subcommittee. It is not evident how the prior alleged mishandling would taint the Committee’s ability to render a fair decision.

There are two ways in which Chisam’s allegations would seem to be relevant to a potential future proceeding with regard to Waters. First, he alleges that Kim and Sovereign engaged in impermissible “ex parte communications” with members of the adjudicatory subcommittee, particularly Representative McCaul and, to a lesser extent, then-Ranking Member Bonner. It is by no means clear what the standards are for such communications, which are not addressed expressly by the Committee’s rules. Chisam himself does not contend that all such communications are improper, only those that are inappropriately “adversarial.”

As a practical matter, it seems almost inevitable that Martin will recommend that some members of the Committee be recused from future involvement in the Waters case. Whether or not Martin agrees with or can substantiate Chisam’s allegations, recusal would help to ensure public confidence in the process and remove any potential taint from the prior proceedings. Rather than further delaying the Waters proceeding while he tries to untangle the legal and factual aspects of the alleged ex parte communications, it would make more sense for Martin to figure out who ought to be recused in order for the matter to move forward.

Second, Chisam raises questions about whether certain information obtained by the two attorneys was inadmissible because it was learned from settlement negotiations. This seems like a straightforward evidentiary issue on which a future adjudicatory subcommittee could rule in the normal course. Martin certainly can and should review the issue and provide a recommendation, but it hardly seems like something that would require extensive investigation.

Rather than focusing primarily on the allegations against Kim and Sovereign, it would seem to make much more sense for Martin first to address the question of whether the Waters matter should move forward at all. This means reviewing the allegations and evidence against Waters, and making a judgment as to what charges, if any, are merited. If Martin believes that charges should proceed, he should also make recommendations to ensure that the proceedings are, and are perceived to be, fair.

This does not mean that Martin should ignore other issues (which I will discuss in another post). But if he focuses first on the minutiae of the allegations against Kim and Sovereign, the case will likely sink further into a morass of accusations and counter-accusations, delaying if not preventing a satisfactory resolution to the Waters case.

 

Update: OCE funding survives. Daniel Schuman reports.

There is going to be a roll call vote tomorrow on an amendment offered by Representative Mel Watt to reduce the budget of the Office of Congressional Ethics (OCE) by 40%. Daniel Schuman of the Sunlight Foundation sounds the alarm.

Representative Watt may have legitimate concerns with OCE (which I have criticized on occasion myself), but this doesn’t seem like a good way to run a railroad. With the House Ethics Committee hiring outside counsel to investigate itself, OCE looks like the most smoothly operating part of the ethics process right now. The House should step back and reassess the process as a whole before making any more dramatic changes.

Note: CREW declined comment on this blog post.      

On June 14, 2011, Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Office of Congressional Ethics (OCE) against Speaker of the House John Boehner. The complaint alleged that the Speaker had violated the Anti-deficiency Act, 31 U.S.C. § 1341(a), by directing the House Counsel to hire outside counsel to defend the constitutionality of the Defense of Marriage Act (DOMA). The essence of the claim was that the contract between House Counsel and the outside firm, signed in April 2011, violated the Act because the $500,000 obligation incurred exceeded the available appropriations in the FY2011 appropriation for the House Counsel’s office.

When I first read the complaint, several things struck me. First, the “ethics” issue raised by CREW was really a highly technical question of appropriations law. Not being an expert in this area, I couldn’t tell whether CREW’s claim was colorable or not. But I do know that the House Counsel has contracted with outside counsel in the past, using funds from other House accounts with the approval of the Committee on House Administration. It seemed odd that CREW did not address this fact, which was specifically mentioned by House Counsel Kerry Kircher in testimony that CREW submitted with its complaint.

Second, although Kircher made it clear that the funds to pay outside counsel would not be coming from the House Counsel’s office, but “from other sources in the House,” CREW offered little but vague generalities to support the proposition that this would be impermissible under the Anti-deficiency Act. The complaint is sprinkled with general citations to GAO’s multi-volume “Principles of Federal Appropriations Law,” but CREW identifies no specific authority for the proposition that reprogramming or transferring funds among House accounts is prohibited.

It is worth mentioning here that the core purpose of the Anti-deficiency Act is to ensure that the executive branch adheres to congressionally-imposed limits on expenditures. Although GAO has opined that the Act applies to the legislative branch, it appears that no legislative branch contract or expenditure has ever been found to have violated the Act. (FWIW, when I looked at the Act in connection with the government shutdowns in the 1990s, it was not clear to me that it was intended to apply to Congress at all).

Third, it was particularly surprising that CREW’s complaint does not cite any appropriations law expert in support of its theory. As far as can be determined from its website, CREW’s staff has no background in appropriations law. Given the highly technical nature of the allegations, one would have expected CREW to consult an expert before filing what is, after all, a claim that the Speaker of the House has violated a criminal statute. If it did so, there is no indication of it in the complaint.

Fourth, CREW’s decision to file a complaint against the Speaker also seemed curious. Following the Bipartisan Legal Advisory Group’s decision to defend DOMA, Boehner “directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute.”

The House Counsel is, of course, the House’s chief lawyer and was a party to the DOMA contract. The House Administration Committee is the committee of jurisdiction over accounts of the House generally, with specific authority over expenditures and auditing and settling of accounts, including those of House officers and administrative offices. See House Rule X(1)(k). The committee’s chairman, Dan Lungren, reflected the committee’s approval by signing the DOMA contract.

Presumably, when Speaker Boehner gave direction to the House Counsel and House Administration Committee, he expected that they would act in compliance with all applicable laws, rules and regulations. Filing an ethics charge against the Speaker for an Anti-deficiency Act violation in the House is like impeaching the President for a similar violation in the executive branch. Does CREW expect that the Speaker personally researches appropriations law to ensure that the House’s contracts are in compliance? Did it expect him to consult with an appropriations law expert to ensure that the DOMA contract in particular was lawful? Put another way, did it expect that he would do more than CREW itself apparently did before filing its complaint?

Finally, CREW chose to file its complaint with the OCE, an office with absolutely no expertise (and questionable authority) with regard to interpreting or opining on the Anti-deficiency Act or any other appropriations law issue. By contrast, it chose not to submit its complaint to GAO, a legislative branch agency with unquestionable and unparalleled expertise in this area. Unlike OCE, (which, AFAIK, has never addressed a remotely comparable issue), GAO has express statutory authority and decades of experience in resolving precisely these types of questions.

Fortunately, after CREW filed its complaint, the chairman of the House Legislative Branch Appropriations Subcommittee did ask GAO for an opinion on whether the DOMA contract violated the Anti-deficiency Act. On July 6, GAO issued an opinion, finding that the DOMA contract did not violate the Act and that the House has statutory authority to transfer funds from other contracts to cover the costs of the contract and other obligations of the House Counsel’s office.

GAO’s opinion relies heavily on 2 U.S.C. § 95b(b), which provides explicit authority for transfers among various House accounts, including that for the House Counsel. Significantly, the CREW complaint makes no mention of this provision, which naturally leads to the question of whether it was aware of it at the time that it filed its complaint.

CREW responded to the GAO opinion by withdrawing its OCE complaint. However, it did not issue an apology or explain its failure to discuss apparently controlling law in its original complaint. Moreover, its withdrawal letter somewhat churlishly claims that GAO did not address all of the issues raised in the CREW complaint, such as the question of whether the DOMA contract violated the Anti-deficiency Act by incurring obligations beyond FY2011. In fact, GAO did address precisely this question. See GAO Opinion of July 6, 2011 at 3 n.5.

We all make mistakes. But filing this strained ethics complaint against the Speaker of the House would seem to require something more than “my bad.” CREW has some explaining to do.

 

I have been working on a post regarding congressional oversight of intelligence, but it is my solemn duty to drop everything and comment on the ethical troubles of a certain congressman, who unfortunately will not remain nameless.  As reported by the Washington Post: “In an extraordinary reversal at an extraordinary news conference, Rep. Anthony Weiner of New York admitted Monday afternoon that he had repeatedly lied to his constituents and the country in denying that he had sent a lewd picture of himself to a college-age woman on Twitter.”

The Minority Leader has called for an ethics investigation, focusing in particular on whether any government resources were used in connection with the inappropriate tweeting. For his part, the congressman denies any violation of House rules, stressing that he had used a personal blackberry to send the tweets in question. He contends that his misconduct was purely personal and therefore not within the cognizance of the ethics rules.

To the extent that the congressman has an ethics problem, however, it seems more likely to revolve around his interactions with the media than around the underlying conduct. In the first place, it would be difficult to argue the congressman’s press conferences or media interviews were purely personal in nature. As I have noted before, the courts have found that congressional interviews with the press fall within the scope of official activities, even when the subject matter is personal in nature. See Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006) (“A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.”) In addition, it seems highly likely that the congressman used staffers and other government resources in arranging and preparing for the various interviews that he gave regarding this subject.

I am not aware of any precedent on whether lying to the media constitutes a violation of House Rules. One can imagine that the Ethics Committee would be reluctant to establish such a precedent. However, in this case it may be fairly observed that the congressman did a good deal more than merely respond untruthfully to press inquiries.  He not only put out a false cover story, in which he claimed that his account had been “hacked” (likely a federal crime), but he seems to have actively sought opportunities to propagate this story, to issue false denials, and to attack the motives and integrity of reporters who questioned his statements. See, for example, the congressman’s interactions with CNN and ABC.

Any ethics case against the congressman would almost certainly be premised on Clause I of House Rule XXIII, which provides that a “Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.” Applying this vague standard is notoriously difficult. In this case, though, it is not hard to see how the Ethics Committee might conclude that the congressman’s media campaign failed to “reflect creditably on the House.”