Category: Ethics

 

           Section 2 of the Ethics Executive Order requires all appointees of the Obama Administration, not merely those who were former lobbyists, to execute the following pledge: “I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” 

            The term “particular matter involving specific parties” is a term of art used in federal law, 18 U.S.C. § 207, and regulations, 5 C.F.R. § 2641.201(h).  It is also used in Rule 1.11 of the D.C. Rules of Professional Conduct, which prohibits a former government lawyer from accepting employment in connection with a matter involving a specific party or parties if he or she participated in that matter while in public service. 

            At first glance, Section 2 of the E.O. appears to contain a significant internal contradiction.  The section explicitly refers to its applicability to “regulations.”  However, the definition of a “particular matter involving specific parties” excludes almost all regulations.  As explained by the Office of Government Ethics, “[l]egislation or rulemaking of general applicability and the formulation of general policies, standards or objectives, or other matters of general applicability are not particular matters involving specific parties.”  73 Fed. Reg. 36,168, at 36,193 (June 25, 2008). 

            This apparent contradiction, however, can be resolved upon a close reading of Section 2 and its definitions.  It is true that a regulation would not normally constitute a “particular matter involving specific parties” within the meaning of Section 2.  However, the definitions in the Executive Order provide that a “particular matter involving specific parties” has the same meaning as under federal law, “except that it shall also include any meeting or other communication relating to the performance of one’s official duties with a former employer or a former client, unless the communication applies to a particular matter of general applicability and participation in the meeting or other event is open to all interested parties.”  Thus, even though a regulation would not be a “particular matter involving specific parties” in and of itself, it will become so to the extent that the official in question has communications about it with his former employer or client (except in the context of a meeting or event that is open to all interested parties). 

            To illustrate how this would work, suppose that Covington & Burling, the former employer of Attorney General Eric Holder, is representing two clients.  Client A is involved in litigation against the Department of Justice.  Section 2 of the E.O. prohibits Holder from participating in discussions or decisions regarding this litigation, regardless of whether Covington communicates with him about it. 

            On behalf of Client B, on the other hand, Covington is seeking to persuade the Department of Justice to adopt a regulation or policy of general applicability.  Holder is not prohibited from involvement in discussions or decisions about this matter; however, he is prohibited from having communications with Covington about it.

 

         Today we will commence a review of the Obama Executive Order on Ethics, a subject that I suspect will be much discussed over the coming months and years.  We will focus first on the provisions applicable to incoming lobbyists.  Although the E.O. is not limited to lobbyists, its application to them is particularly draconian.  For illustrative purposes, we will consider how the provisions would apply in the case of Eric Holder, the nominee for Attorney General.  

            The relevant provision is Section 3, which requires appointees to agree to the following: 

“3.  Revolving Door Ban    Lobbyists Entering Government.  If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment: 

(a)    participate in any particular matter on which I lobbied within the 2 years before the date of my appointment; 

(b)  participate in the specific issue area in which that particular matter falls; or 

(c)    seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment.”

Time Period. The first thing to note about this provision is that it is limited to persons who were “registered lobbyists” during the two years prior to their appointment. Thus, for example, Holder was registered as a lobbyist for Global Crossing in 2004. Because this was more than two years before his appointment, it has no impact on his obligations under Section 3.

The time period presumably reflects an assumption that an appointee is more likely to be partial to a client that he or she represented in the recent past. At best, this seems like a gross generalization, but let’s accept it for the sake of argument. This aspect of the appointee’s conflict of interest is already covered by Section 2 of the E.O., which limits the appointee’s involvement in matters relating to a former employer or former client from the previous two years. Section 2, however, applies to all appointees, not merely lobbyists (which makes sense, as there is no reason to believe that lobbyists are unusually attached to their clients- just ask the Indian tribes represented by Jack Abramoff).

Perhaps it is thought that there is an “appearance of impropriety” when ex-lobbyists are involved in matters in any way related to their prior lobbying activities. If so, it is not obvious why this appearance would dissipate after two years. Nevertheless that is the line drawn by the E.O.

Registered Lobbyist. Section 3 applies only to “registered lobbyists.” A registered lobbyist is defined as a lobbyist registered under the Lobbying Disclosure Act, 2 U.S.C. § 1603(a), or a lobbyist identified in a report or registration filed by a lobbying organization under the LDA.

At the outset it should be noted that the LDA is a disclosure statute, designed to give the public a broad picture of who is lobbying and how much is being spent on lobbying. The definitions of what constitute lobbying under the law are technical, and do not necessarily correspond to what the public thinks of as a “lobbyist.” You can be required to register as a lobbyist even though only a small part of your job involves contacting government officials. Moreover, many registrants tend to over-disclose, identifying employees as lobbyists even though they may not meet the formal requirements.

Conversely, not everyone who the public would consider to be a lobbyist is a “registered lobbyist.” For example, two of the most notorious modern influence-peddlers, Mitch Wade and Brent Wilkes (who were convicted for bribing former Congressman Duke Cunningham), were not registered lobbyists, and probably were not required to be under the LDA.

One way to avoid a registration requirement under the LDA is to fall within one of the enumerated exceptions to the definition of “lobbying contact.” For instance, there is an exception for contacts made in the course of “a judicial proceeding or a criminal or civil law enforcement inquiry, investigation or proceeding.” Thus, when Holder represented Chiquita Brands International in a long-running investigation by the Justice Department, he did not register as a lobbyist, even though his representation evidently included significant negotiations and communications with the Department that led to a civil settlement and a subsequent criminal plea. Had Holder registered as a lobbyist for Chiquita, he would be disqualified from becoming Attorney General under Section 3(c).

Another exception to the LDA is for communications “made on behalf of the government of a foreign country or a foreign political party.” These communications are instead governed by the Foreign Agents Registration Act, 22 U.S.C. § 611. Registration under FARA, however, apparently does not trigger Section 3 of the E.O., which I can only assume is an oversight.

Finally, there may be instances where an appointee arguably should have registered as a lobbyist, but failed to do so. Holder, for example, was not registered as a lobbyist for the NFL, although others at his law firm were. However, Holder represented the NFL in an attempt to counter embarrassing publicity regarding the use of performance enhancement drugs:

Holder quickly gathered senior executives from the other three leagues and their player unions and led them into a series of meetings in 2007 with top officials of, among others, the Drug Enforcement Administration (DEA), the FBI, the U.S. Anti-Doping Agency (USADA), and the Office of National Drug Control Policy (ONDCP), the agency that presides over the nation’s “war on drugs.” The sessions began with a measure of fanfare.

Whether or not Holder was required to register as a lobbyist for the NFL would depend on several factors, including which government officials he communicated with and the ostensible purpose of the communications. On the face of it, however, Holder may have had an obligation to register as a lobbyist for the NFL but failed to do so. To ensure that the purposes of the E.O. are not evaded, both the Obama Administration and the Senate will now have to ask appointees about possible improper failures to register under the LDA.

Particular Matter. Section 3(a)’s prohibition against an ex-lobbyist appointee participating in any “particular matter” follows the definition set forth in 5 C.F.R. § 2635.402(b)(3), which defines the term as “matters that involve deliberation, decision or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. Such a matter is covered . . . even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interest of such a discrete and identifiable class of persons.” The regulation goes on to explain that a regulation that covered a large and diverse group of people, such as the Social Security Administration’s regulations on appeal procedures for disability claimants, would not be a “particular matter,” while a regulation such as the ICC’s safety standards for trucks on interstate highways would be because it affects only a relatively discrete and identifiable class of persons.

The exact scope of Section 3(a)’s prohibition, however, is of limited relevance in most situations because it is subsumed by the significantly broader prohibition of Section 3(b).

Specific Issue Area. Section 3(b) prohibits the ex-lobbyist appointee from participating in the “specific issue area” in which any matter covered by Section 3(a) falls. The E.O. does not define the term “specific issue area.” The LDA, however, requires that a lobbying report contain “a list of the specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities, including, to the maximum extent practicable, a list of bill numbers and references to specific executive branch actions.”

This definition, it is important to note, leaves a great deal to the discretion of the registrant in defining the boundaries of a “specific issue.” For example, in the Global Crossing report filed by Holder’s law firm, Covington & Burling, the specific issues are identified as “CFIUS process and issues.” Would the E.O. therefore prohibit Holder (if the report had been filed within the two-year time window) from any involvement in CFIUS issues? Suppose the report had used an even broader term, like “foreign investment”? If the scope of the prohibition is to be determined by the report language, the effect of the E.O. will vary widely depending on the words chosen by the person (probably a legal assistant) who filled out the report.

Executive Agency that I lobbied. Section 3(c) prohibits any ex-lobbyist from seeking or accepting employment with any executive agency that he or she “lobbied” in the prior two years. Thus, for example, if Holder had lobbied the Justice Department within the last two years, he would not be able to become Attorney General (absent a waiver, such as that the Obama Administration provided to its nominee for Deputy Secretary of Defense).

The rationale for this rule is not self-evident. If an ex-lobbyist is already prohibited from involvement in any matters involving former clients and in any issues that were the subject of the prior lobbying, why is there also a prohibition against employment with an agency that was lobbied?

Suppose Holder had lobbied the Justice Department in 2008 with regard to the NFL’s policy on performance enhancing drugs. If he became Attorney General, he could presumably recuse himself from all matters involving the NFL or performance enhancing drugs. He would, however, still be supervising the very officials who he had previously lobbied. Perhaps it is thought that this would put those officials in an awkward position. Moreover, if government officials believe that ex-lobbyists could be appointed to powerful positions in their own agencies, they may be intimidated in dealing with politically well-connected lawyers like Holder.

If this is the reason for Section 3(c), however, the provision is not broad enough to achieve its aims. It only applies when the appointee “lobbied” the agency, which means to “have acted as a registered lobbyist.” It seems clear, though, that Holder has repeatedly communicated with the Justice Department and its components in the last two years on behalf of the NFL and other clients. Whether or not those communications technically constituted “lobbying,” they would still threaten the same harm the E.O. seeks to prevent. The logic of the E.O., therefore, seems inconsistent with Holder’s appointment as Attorney General.

Here is my proposal for a principled resolution of the Stevens matter. 

            1.  The first question that should be addressed is whether Stevens’s underlying conduct, independent of the fact of his conviction, warrants expulsion.  I suspect that the Senate’s answer to this question would be no.  In essence, the case against Stevens was that he received benefits which he knew or should have known were gifts, and that he failed to report them.  The Senate would most likely not see this as something that should be treated as a criminal matter, and certainly not the type of corruption that would merit the ultimate sanction of expulsion. 

            2.  If the answer to the first question is no, what role should the fact of Stevens’s conviction play in the Senate’s deliberations?  If the underlying conduct does not warrant expulsion, it would seem that the jury’s verdict, standing alone, would not change this conclusion.  Therefore, the Senate should not expel Stevens simply for being a “convicted felon.”     

            3.  If the answer to the first question is yes, the Senate must then consider what weight to give to the fact of Stevens’s re-election.  While I do not believe that his re-election deprives the Senate of the power to expel, constitutional considerations, supported by longstanding precedent and practice in both Houses, suggests that this power must be used with extreme caution in cases where the electorate has acted with knowledge of the misconduct.  The Senate must therefore decide whether Stevens’s conduct was so egregious as to permit it to override the will of the voters.  If the answer is yes, the Senate may proceed to immediate expulsion.  For reasons indicated earlier, however, the answer in all likelihood would be no. 

(It has been suggested that some voters who supported Stevens did not do so because they wanted him to be in office, but because they wanted to keep the seat in Republican control.  While this may or may not be true, I don’t think it should play a role in the Senate’s decision.  Constituents vote for all kinds of reasons, and the Senate should not be in the business of attempting to discern the motives of groups of voters in particular elections).   

            4.  If the Senate decides that immediate expulsion is not warranted (either because it is not justified by the underlying conduct or because of the need to defer to the will of the voters), it still must decide what to do in the event that Stevens is required to report to prison.  Because a Senator cannot perform his legislative and representational duties while in prison, the Senate would be justified in expelling him under those circumstances.  On the other hand, one might argue that if the prison sentence were very short, or if Stevens had not exhausted his appeals, the Senate should continue to defer expulsion. 

            5.  Even if Stevens receives a substantial prison sentence and his appeals are rejected, there is one additional issue that the Senate should consider before voting to expel.  Because the Constitution places the decision on whether to expel a Member in the Congress, not in the judicial branch, the Senate should not simply act as a rubber stamp on the decision made by the jury and court.  

 Instead, the Senate should consider whether Stevens’s conviction was consistent with the rights and privileges of the Senate.  This is a different question than whether the Senate would have reached the same result as the jury on the evidence presented at trial, or whether there was some procedural error in the trial.  Instead, the question should be whether the prosecution or trial violated the separation of powers or the Senate’s autonomy by, for example, relying on evidence protected by the Speech or Debate Clause or improperly construing the Senate’s rules.  The Senate might also consider the issue of prosecutorial misconduct in this connection.  Only if the Senate is persuaded that the conviction was consistent with its rights and privileges should it proceed to expel Stevens.

 

 

        Much discussion continues on whether the Senate can or will expel Senator Stevens.  Several Senators, including Majority Leader Reid, have suggested that expulsion is a virtual certainty.  Minority Leader McConnell, on the other hand, has indicated that Stevens should be given a chance to pursue his appeal before expulsion, leaving open the question of what happens should Stevens be required to report to prison while his appeal is still pending. 

            Stan Brand, the former General Counsel of the House, is quoted today as saying that “given the voter condonation of [Stevens’s] conduct, I think there are serious [constitutional] questions about whether they could expel him.”   

            Thus, possible resolutions range from immediate expulsion without regard to what might happen in the appeals process, on the one hand, to respecting the will of the voters and allowing Stevens to remain in the Senate without regard to whether he is required to serve time in prison, on the other.  In my judgment, the proper course is somewhere in the middle, close to what Senator McConnell has suggested. 

            I do not believe that the re-election of Senator Stevens constitutes a jurisdictional bar to Senate expulsion in this matter.  Although there is some Senate precedent to support such a position, the better view would be that the Senate retains the constitutional power of expulsion even for conduct known to the voters at the time of re-election. 

            Nevertheless, in my view the fact of Stevens’s re-election is more than merely a “political” issue as suggested in Professor Rick Hasen’s Election Law Blog today.  To my mind, this implies that the Senate’s constitutional authority is unconstrained by the fact of the voters’ verdict, and the only issue is whether there would be some sort of political fallout for Senators who vote for or against expulsion.  On the contrary, I believe that the Senate has a constitutional obligation, supported by its own precedents (and similar precedents in the House), to consider the decision of Alaska voters as a factor weighing heavily against expulsion. 

            Professor Hasen cites a CRS report to the effect that while each House of Congress has the authority to expel for misconduct known to the voters at the time of election, “it has been a general practice and policy in Congress not to expel a Member for past offenses if the electorate knew of the offenses involved, and still chose to elect or reelect that individual as their Representative or Senator in Congress.”  (emphasis in original). 

True enough as far as it goes, but it should not be inferred that this policy is one that each House could simply ignore or change.  As one of the precedents cited by the CRS report explains, the policy is one of constitutional dimension: 

  As a matter of sound policy, this extraordinary prerogative of the House, in our judgment, should be exercised only in extreme cases and always with great caution and after due circumspection, and should be invoked with greater caution where the acts of misconduct complained of had become public previous to and were generally known at the time of the Member’s election. To exercise such power in that instance the House might abuse its high prerogative, and in our opinion might exceed the just limitations of its constitutional authority by seeking to substitute its own standards and ideals for the standards and ideals of the constituency of the Member who had deliberately chosen him to be their Representative. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.   

VI Cannon’s Precedents, § 398 (emphasis added). 

            In my next post, I will propose how the Senate might think about the issue of whether Stevens should be expelled.

Roll Call reports the following debate between Senators Inouye and Reid: 

In a statement released by the Stevens campaign, Inouye argues that his longtime friend will be seated as a Member of the Senate next year if re elected and that he believes the felony convictions will be overturned.

“As the Senate has done in every other instance in its long 220-year history, I am absolutely confident that Ted Stevens will be sworn into the Senate while he appeals this unjust verdict, I am certain that this decision in Washington, D.C., will be overturned on appeal,” Inouye said.

But Reid rejected that reading of Senate history and chastised Stevens for using his friend in a political campaign.

“While I respect the opinion of Senator Daniel Inouye, the reality is that a convicted felon is not going to be able to serve in the United States Senate. And as precedent shows us, Senator Stevens will face an ethics committee investigation and expulsion, regardless of his appeals process,” Reid said.

Lets be clear here.  If Stevens is re-elected, he will be seated as Member of the Senate.  He meets the constitutional qualifications (he has been a citizen for nine years, is an inhabitant of Alaska and is way more than thirty years old) and thus the Senate has no power to exclude him.  So Senator Inouye is certainly correct about that.

As for Senator Reid’s claim that “precedent” shows that Stevens will face expulsion regardless of what happens with his appeal, this is questionable.  Given that no Senator has ever been expelled under circumstances remotely comparable, one certainly cannot claim that precedent demands Stevens’s expulsion.  As I have pointed out, the most relevant precedent is the Harrison Williams case, which suggests that the Senate would allow Stevens the opportunity to seek post-trial relief up to the point that he would actually face the prospect of going to prison.

The first thing that will happen, of course, is that the Senate Ethics Committee will commence an inquiry and review the evidence.  As Rob Walker, former staff director of the committee, has explained, the committee will likely rely heavily on the trial transcript, but also must give Stevens and his counsel an opportunity to present evidence and argument in defense of the charges.  The members of the Committee are then required to make an independent judgment as to whether Stevens is guilty of the criminal charges and/or violations of any Senate rules.

In reality, however, the members of the Committee (and ultimately the Senate as a whole) are likely to be less concerned with the evidence than with the difficulty of squaring their decision with two external judgments that point in opposite directions (1) the jury verdict of guilty and (2) the (hypothetical) decision of Alaska voters to return Stevens to the Senate. 

It is difficult to say at this juncture how the Committee or the Senate would resolve this tension.  In principle, the Senate should make an independent judgment as to whether the offenses established by the evidence warrant expulsion.  Precedent, at least in the legal sense, does not tell us much about what judgment the Senate should make.  It seems most likely, however, that the Senate would follow the practice in the Williams matter and allow Stevens the opportunity to pursue post-trial remedies.

What happens if Stevens cannot avoid going to prison, but still has a chance of getting his conviction overturned on appeal?  Most likely, he would resign, but if he did not, the Senate would probably expel him.  This conclusion is dictated less by precedent than by the assumption that Senators would not be comfortable with the idea of a sitting Senator sitting in jail.    

Paul Blumenthal of the Sunlight Foundation poses the following questions: “The Alaska Daily News covers another aspect of the trial: what happens if Sen. Stevens is found guilty and then wins reelection? I have another question, what does the Senate Ethics Committee do if Sen. Stevens is acquitted?” 

Lets begin with the easiest question:  if Stevens is not re-elected, it is virtually certain that the Senate Ethics Committee will take no action, regardless of what happens with his trial.  Both the Senate and the House have long taken the position that they lose jurisdiction over a member once he leaves office.  There would be little time left for the Senate Ethics Committee to take any action against Stevens, even if it were inclined to do so.   

A more difficult question arises if Stevens is acquitted and re-elected.  In that case, the Senate Ethics Committee would be under pressure to take action, but Stevens’s lawyers and supporters would argue that the Committee should respect the verdict, not just of the jury but of the voters.  There is a strong tradition, in both the House and Senate, of declining to take disciplinary action against members based on conduct that was known to the voters at the time of their election.  Sometimes this principle has even been described as jurisdictional—for example, in the Fourth Congress a Senate Select Committee found that the Senate had no jurisdiction over accusations of fraud and perjury “alleged to have been committed before [the Senator’s] election to the Senate and were public knowledge.”  J. Chafetz, Democracy’s Privileged Few 221 (2007).  It is generally understood today, however, that this limitation is in the nature of a prudential restraint. 

This principle would certainly counsel the Senate Ethics Committee against recommending Stevens’s expulsion, but it is less clear that it should prevent the Committee from taking or recommending lesser action.  After all, the fact that the voters wanted Stevens to remain in the Senate would not necessarily mean that they want him to escape all punishment for his actions.  Moreover, even if the Committee chose not to revisit the jury’s findings with regard to false statements by Stevens, it could still consider whether Stevens violated Senate rules.  Indeed, even if the Committee accepted everything said by Stevens in his own defense as true, one could argue that it should find that his actions violated the letter and/or spirit of the gift rules. 

The most difficult issue is what happens if Stevens is convicted and re-elected.  While the principle of respecting the decision of the voters would weigh heavily against expulsion, there would also be a countervailing tradition that Members of Congress, when convicted, normally resign their offices.  If Stevens were not to follow that tradition, the Committee would have to face a serious question of whether to expel him. 

The most relevant precedent would seem to be the case of Senator Harrison Williams, who was convicted on bribery charges in 1980 after being videotaped agreeing to accept a bribe during the Abscam investigation.  The Senate allowed Williams to remain in the Senate for more than a year while he pursued post-trial remedies.  Some Senators thought expulsion was too harsh a remedy for Williams’s conduct.  Eventually, however, the Senate scheduled a vote on expulsion; Williams chose to resign before the vote.  As Dennis Thompson notes, “even in a case of almost pure individual corruption, it took unusually explicit evidence and confirmation provided by a criminal conviction to bring the Senate to the point of imposing its ultimate sanction.  In most cases the accused’s motives are less evident and his colleagues’ judgment less severe.”  D. Thompson, Ethics in Congress 105 (1995). 

Based on the Williams precedent, it seems likely that Stevens would not be expelled at least until he had exhausted his post-trial options.  If he was at the point of actually going to prison, however, the Senate would presumably expect him to resign.  If he failed to do so, at that point the Senate would most likely proceed to expel him.

           My last post discussed how the Stevens jury may be confused about the definition of a “reportable liability.”  Today I will discuss a significant ambiguity in the jury instructions themselves.

           

            The instructions reflect the fact that Stevens is charged with failing to report both gifts and liabilities.  But nowhere do the instructions state, at least explicitly, that these are alternative theories.  In other words, the indictment alleges that the various things of value Stevens received were either gifts or liabilities.  A single thing of value, however, cannot be both a gift and a liability. 

            The jury instructions obliquely address this question.  There are eight different instructions (Nos. 32, 43, 45, 51, 53, 55, 57 and 68) that deal with the need for the jury to reach a unanimous verdict.  These instructions fall into three different categories.  Instruction No. 32 deals with Count One, which alleges that Stevens concealed material facts on his financial disclosure forms (FDs) for each year from 2000 to 2006.  The instruction states that “[i]n order to find that the government has met its burden to show that Senator Stevens concealed a specific alleged gift or liability, you must unanimously agree as to the specific gift or liability that Senator Stevens concealed and the specific Financial Disclosure Form on which the alleged concealment occurred.”

Instructions Nos. 43, 45, 51, 53, 55 and 57 deal with Counts Two through Seven, each of which alleges that Stevens made a false statement on his FD for a particular year from 2001 to 2006 (Count Two deals with 2001, Count Three with 2002, etc). Each instruction states “[i]n order to find that the government has met its burden to show that Senator Stevens made or caused a false, fictitious or fraudulent statement or representation when he filled out his [year in question] Financial Disclosure Form on [date in question], you must unanimously agree as to the statement or representation that was false, fictitious or fraudulent.”

Finally, Instruction No. 68 covers all counts, and states: “In order for your verdict to be unanimous, you must all agree that the government proved each element of each offense beyond a reasonable doubt. Senator Stevens has been charged with seven counts of making or causing false statements on his Financial Disclosure Forms. For some of the counts, the government has alleged more than one statement or representation, or more than one gift or liability. However, in order to return a guilty verdict on any count, you must unanimously agree on the specific false statement or representation and the specific gift or liability that Senator Stevens allegedly failed to disclose on his Financial Disclosure Form.”

I think I understand the rationale behind these instructions, but one can easily imagine the jury being confused as to the different and apparently inconsistent verbiage used. Presumably, though, the jurors will get the message that they must agree on both the particular thing of value Stevens should have reported and the year in which he should have reported it. In other words, it will not do if the jurors agree that Stevens should have reported Item A, but some believe that it should have been reported only on his 2004 FD and some believe it should have been reported only on his 2005 FD. Similarly, it will not do if the jurors all agree that Stevens should have reported something on his 2004 FD, but some believe that he was only required to report Item A and some believe that he was only required to report Item B.

It gets a little murkier, though, with respect to whether the jurors must agree on whether a particular item was a gift or a liability. Suppose, for example, the jurors all agree that Stevens was required to report Item A on his 2004 FD, but some believe that it should have been reported as a gift and some believe it should have been reported as a liability?

Read closely, it seems to me, the instructions for Counts Two through Seven require that the jurors agree on whether the particular item is a gift or a liability. This is because, as the jury instructions state, Stevens made separate “statements or representations” on each FD with respect to gifts and liabilities. If some of the jurors believe that Item A is a gift and some believe it is a liability, they would be unable to agree on which statement or representation was false and thus could not reach a unanimous verdict.

But what happens if the jurors who believe Item A is a gift also believe that, if it is not a gift, it is a liability? Or if some jurors believe that Item A is definitely either a gift or a liability, but are not sure which? It would seem that unless the jurors unanimously agree, beyond a reasonable doubt, on whether Item A is a gift or liability, it is logically impossible for them to agree on whether Stevens made a particular false statement or representation for purposes of Counts Two through Seven.

Count One may be different, though. That count does not charge Stevens with making a false statement or representation, but with concealing material facts. It may be that the jury could unanimously find that Stevens concealed a material fact, ie., his receipt of Item A, while they disagree as to whether Item A was a gift or a liability.

Maybe I am missing something (or maybe this is just the way the criminal justice system works), but it seems like asking an awful lot of the jury to puzzle this out on the instructions they have received.

 

           According to The Hill, one of the questions asked by the Stevens jury this week involved the issue of reportable liabilities.  The jury’s note to the judge asked him to “please clarify the liability cost as it is not readily clear in the Senate regulations.”  It is interesting that the jury would be focused on liabilities, since everything I have read about the trial has dealt only with the question of whether Stevens received reportable gifts, and has not mentioned either evidence or argument on whether Stevens had reportable liabilities. 

            The judge evidently interpreted the jury’s question as meaning “what dollar amount triggers a reportable liability?”  While this may be the most natural reading of the note, it is difficult to believe that the jury was confused on that point.  Both the “Senate regulations” and the jury instructions (Instruction No. 66) make it crystal clear that the trigger is $10,000.  If the jury doesn’t understand that, it is in real trouble. 

            Perhaps the jury is confused about how it should determine whether a liability is more than $10,000.  Or perhaps it is confused about how to determine whether something is a reportable liability in the first place.  The jury instructions do not provide any guidance on this, apparently leaving it up to the jury’s common sense.  The jury’s note, moreover, suggests that it has been given copies of the “Senate regulations” (presumably referring to materials such as the Senate Ethics Manual and the instruction booklet for financial disclosure) and that it is trying to interpret these regulations for itself. 

            This strikes me as problematic.  It would seem that interpreting the meaning of the term “liability” under the financial disclosure statute is a legal question for the court, not a factual question for the jury.  In particular, as I have noted before, it is not at all obvious that an unpaid and unbilled debt for goods or services constitutes a “liability” within the meaning of the Senate rules.  It should not be up to the jury, but to the court, to make the determination of whether the term “liability” extends so far.  Moreover, to the extent that the Senate rules are ambiguous on this point, even the court is prohibited, under separation of powers principles, from interpreting them.  The jury’s statement that the Senate regulations are not “readily clear” may itself provide ammunition to the defense for post-trial motions and/or appeal. 

            In the meantime, whatever the jury’s question, it will apparently have to muddle through without help.  According to The Hill, the judge ultimately decided not to provide it with an answer.

 

             

          For those interested in the Stevens case, the Anchorage Daily News has posted the jury instructions.  

            One issue that the jury instructions deal with is the relevance of public disclosure to the case.  As discussed by Taxpayers for Common Sense, the defense argued that the duty of disclosure to the public is irrelevant because Stevens is charged with violating the False Statements Act, which applies only to false statements made to the government, not to the public.  The prosecution argued that the duty of public disclosure is relevant to the case because one of the purposes of the financial disclosure requirement is to inform the public.

           

            Jury Instruction No. 65 says: “You have heard reference during the trial to a public interest in disclosure.  Senator Stevens is charged with making false statements to the government, not to the public, and public disclosure is not an element of the charges in this case.” 

            My first reaction to this instruction was that appeared that the judge had accepted the defense’s position.  On reflection, I guess it is not so clear.  The defense wanted all references to public disclosure stricken.  This instruction says that public disclosure is not an element of the charges, which is clearly correct, but it doesn’t say that the duty of public disclosure couldn’t be considered for other purposes (like motive or intent).

Press Release from  David Skaggs, Chair, and Porter Goss, Co-Chair, of the board of the Office of Congressional Ethics established by House Resolution 895: 

The board of the Office of Congressional Ethics held its first meeting together this Thursday and Friday, September 25 and 26, 2008. Our agenda was designed to provide context and background for the new Office and included productive and informative discussions with House leadership, the leadership of the Committee on Standards of Official Conduct and the leadership of the Bipartisan Ethics Task Force, as well as briefings by various House staff members concerned with the ethics process and the administration of the new Office. We also had very useful meetings with several outside experts in the field who are not affiliated with the House. 

The board hopes soon to select an individual for the senior staff position to serve as Staff Director & Chief Counsel in the new Office. It will then proceed to draft and adopt its rules of procedure. Having some staff capacity and having rules for its operation in place are essential conditions for the Office properly to receive and act on any submissions concerning alleged violations of the ethical standards of the House.  House Resolution 895 prohibits the Office from considering such matters until after the November election, and as a practical matter, we do not expect staffing and adoption of rules to permit the Office to be in operation until early in 2009.

 

The members of the board of the Office of Congressional Ethics were jointly appointed by Speaker Pelosi and Minority Leader Boehner as announced by them on July 24, 2008. The members, in addition to former Congressmen Skaggs (D-CO) and Goss (R-FL), are: former Congresswomen Yvonne B. Burke (D-CA) and Karan English (D-AZ), former House Chief Administrative Officer Jay Eagen, and Professor Allison Hayward. Alternates are: former Federal Judge and former Congressman Abner Mikva (D-IL) and former Congressman Bill Frenzel (R-MN).