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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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Congressional Release of Classified Information and the Speech or Debate Clause

At Foreign Policy, Professor Bruce Ackerman asks “should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?” Ackerman notes that under the Speech or Debate Clause, members of Congress “cannot be prosecuted for reading classified material into the public record– and it is up to them, and them alone, to decide what is worth talking about.” He therefore proposes that individual members of Congress who  oppose the surveillance program, such as Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, disclose such classified information regarding the surveillance program as they believe the public needs to know. Ackerman dramatically concludes “[t]he moment of truth is now.”

Ackerman is certainly correct that the Speech or Debate Clause immunizes members of Congress from prosecution for disclosing classified information on the floor or in committee hearings. See Gravel v. U.S., 408 U.S. 606 (1972). As he also recognizes, however, members are not protected against congressional discipline, up to and including expulsion, for revealing classified information without permission.

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

Although the congressional procedures for releasing classified information have rarely (if ever) been used, there is nothing preventing Wyden or a like-minded member from seeking to use them now. Certainly such an attempt must be made before there could be any justification for a unilateral disclosure. If there is a moment for unilateral disclosure, in other words, it is not now.

It should be noted, however that SSCI’s draconian interpretation of its secrecy rules might deter Wyden (or others) from publicly disclosing even the fact of an attempt to invoke section 8 of S. Res. 400. This could prevent him from building needed public support for his efforts. Ackerman and others concerned with excessive government secrecy might more profitably focus on that issue rather than advocate for unilateral disclosure that could undermine the entire congressional system for handling classified information.

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When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)

From The Hill:
“Next week Harry Reid is expected to start calling for votes on a range of executive branch nominees. I expect if he can’t get cloture, he will ask the Senate parliamentarian for a change in the rules so he can get the executive branch nominees confirmed,” said Nan Aron, president of Alliance for Justice and a member of the Fix the Senate Now coalition.

 

Personal and Confidential
The Honorable Elizabeth MacDonough
Parliamentarian
United States Senate
Washington, D.C.

Dear Liz:

I am writing you today about a matter of some delicacy. As you know, I have been having a lot of difficulties with the Senate, and with other things, and I am very certain that it is not your policy to add to those difficulties. So I am hoping you can help me out here.

As we are painfully aware, there is a Senate rule that allows a minority to block almost anything it pleases, including nominations that the President sends us. The Senate adopted this rule a long time ago, even before I was in the Senate. About the time Senator Byrd, may he rest in peace, came to the Senate, I think, though it is hard to believe that anything happened that long ago.

Specifically, Senate Rule XXII provides that to “bring to a close the debate upon any measure, motion, [or] other matter pending before the Senate” requires a vote “in the affirmative by three-fifths of the Senators duly chosen and sworn.” This sounds like mumbo jumbo to your average Joe, but you and I know that it means that I need 60 votes to shut up the “wacko birds” and get anything done around here. Liz, I don’t have 60 votes. I have 55. Sometimes a couple more, sometimes a couple less, but not 60. You see the problem.

People often ask me why, if this rule is such a big problem, we don’t just change it. The answer, as you well know, is that the framers of Rule XXII thought of that. (By the way, it drives me crazy that the Senate Rules always have to be written in roman numerals- I am sure that this was Byrd’s idea). Rule XXII says that to close debate on a “measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting.” That means that to change the rules, I need 67 votes.

Liz, I don’t have 67 votes. I have 55. If I had 67, I wouldn’t need to change the damn rule in the first place. Talk about your Catch XXII! (See what I did there? Get it?)

Continue reading “When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)”

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Could Congress Subpoena Snowden?

So let’s say a congressional committee wanted to take evidence from fugitive extraordinaire Edward Snowden. What options would it have?

First, the committee could issue a subpoena to Snowden, just as it would any witness. Although I don’t know of any case directly on point, it seems to me that a congressional subpoena to a U.S. citizen would be effective regardless of where the citizen is located. See generally Blackmer v. United States, 284 U.S. 421, 437 (1932)  (“Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.”). If Snowden were properly served with a subpoena to testify at a congressional hearing, he could be held in contempt if he failed to appear.

Legally, I don’t think the committee would need any special authority to subpoena Snowden in a foreign jurisdiction as long as it could figure out a way to serve him with the subpoena. Although personal service is the traditional method of serving congressional subpoenas, one might argue that electronic service is adequate under these extraordinary circumstances. But even if service can be accomplished, the committee would still have the practical problem that Snowden could not be punished for contempt until he returns to the United States.

This brings us to another option. As discussed in this CRS memo from 1997, congressional committees have from time to time been authorized to take depositions abroad and seek other means of international assistance in gathering information abroad. The memo, which was written as the House was considering a resolution authorizing extraterritorial investigative activity in connection with the investigation of campaign finance irregularities, explains:

The Committee and its staff are not going to be able to barge into Jakarta or Beijing, set up shop and start subpoenaing foreign nationals or foreign government officials to testify under oath. Rather, the Committee will be given the opportunity to use the various international channels of access to foreign-held information. In the end, the degree of legal formality and difficulty encountered by the Committee if it seeks to hold hearings in a foreign country or to have depositions taken or written interrogation answered, will depend on the nature and sensitivity of the inquiry sought to be conducted which, in turn, will often determine the extent of international comity that will be accorded.

One procedure for obtaining international assistance in obtaining information is the use of letters rogatory, which ask a foreign court to use its own compulsory process to obtain testimony or documents from a witness. At least one congressional committee, the House Select Committee on Assassinations in the 1970s, successfully used letters rogatory to obtain evidence overseas. Other committees, such as the Iran-Contra select committee, have been authorized to use them but did not actually do so. See George W. Van Cleve & Charles Tiefer, International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair, 55 Mo. L. Rev. 43, 92 (1990).

Other methods of obtaining foreign assistance rely on treaty obligations to facilitate the service of process or the taking of evidence. A congressional committee can also seek a foreign government’s assistance as a matter of comity. The CRS memo describes how the October Surprise Task Force was able to obtain the cooperation of a number of foreign governments in obtaining documents and testimony relevant to its investigation, although, shockingly, “[t]he Government of Iran, contacted on numerous occasions through its Permanent Mission to the United Nations, denied the Task Force’s request to travel to Iran to conduct interviews.” The House Ethics Committee also found it difficult to obtain evidence during its “Korea-gate” investigation:

Key to the investigation was the role played by one witness, Kim Dong Jo, a former ROK official, who was not subject to compulsory committee process. In addition to the ROK’s reluctance to make the witness available, the Committee encountered difficulties with our Justice Department and the State Department, through which formal communications and negotiations with the ROK Government had to be channelled. Over a period of a year, the Committee, with the assistance of the House leadership, engaged in public education, Congressional pressure, negotiation, and finally Congressional reprisal.

As these examples illustrate, the key variable in these efforts in the cooperation of the foreign government. In the case of Russia, this is going to be a problem. The State Department website reports:

In July 2003, Russia unilaterally suspended all judicial cooperation with the United States in civil and commercial matters. The Russian Federation refuses to serve letters of request from the United States for service of process presented under the terms of the 1965 Hague Service Convention or to execute letters rogatory requesting service of process transmitted via diplomatic channels. The Russian Federation also declines to give consideration to U.S. requests to obtain evidence. While the Department of State is prepared to transmit letters rogatory for service or evidence to Russian authorities via diplomatic channels, in the Department’s experience, all such requests are returned unexecuted. Likewise requests sent directly by litigants to the Russian Central Authority under the Hague Service Convention are returned unexecuted.

This certainly raises questions whether a congressional committee could obtain Russian assistance to question Snowden. But it is at least conceivable that Russia, and its erratic president, would see advantage in cooperating with a congressional investigation into Snowden’s activities. They might prefer a congressional deposition of Snowden to permitting the executive branch to interview him.

In any event, you can’t know unless you ask.

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House Counsel and the Congressional “Client”

At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.

Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”

This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:

House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,

for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.

This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).

Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).

Continue reading “House Counsel and the Congressional “Client””

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Cert Granted on Three Recess Appointments Questions

The Supreme Court granted cert today in the Noel Canning case, as pretty much everyone expected. Cert was granted as to the two questions raised by the government, (1) whether the President can make recess appointments during so-called “intra-session recesses” and (2) whether the vacancy must arise during the recess for the President to exercise power under the Recess Appointments Clause. In addition, the Court directed the parties to address a third question raised by Noel Canning: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

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The Senate’s Legal Basis for Muzzling Former Staffers

According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee’s oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted it to SSCI for review prior to publication, apparently not expecting that there would be any significant concerns. To her surprise: “[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.”

Divoll and TPM present this as an arbitrary decision by SSCI to block public discussion of intelligence oversight. TPM says that the interview did not involve “classified sources and methods of intelligence gathering” but “general information about how the committee functions– and how it should function.” It says that “[a]mong the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.” Moreover, Divoll’s statements “tracked closely with information gleaned from other sources, and the public record.”

No doubt the committee has a different perspective on the matter. Still, given that Divoll left the employ of the committee 10 years ago and has frequently discussed matters related to her tenure at SSCI in the media since then, apparently without objection by the committee, this is a somewhat curious development. It raises the questions of what legal authority the committee has to block a former staffer from discussing matters of public interest, how broad that authority might be, and what arguments Divoll might have to challenge that authority. We will turn to those issues now. Continue reading “The Senate’s Legal Basis for Muzzling Former Staffers”

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Will the New Jersey Special Senate Election Survive Judicial Review?

Update: the answer to this question is apparently yes, as the New Jersey Supreme Court has declined to hear the challenge.

A three-judge panel of the New Jersey Superior Court Appellate Division has issued this opinion rejecting a legal challenge to Governor Christie’s writ of election setting an October 16, 2013 date for the special election to fill the Senate seat that became vacant as the result of Senator Lautenberg’s death. The case, however, has been set for a fast track review by the New Jersey Supreme Court (hat tip: Rick Hasen), with briefs challenging the writ to be filed on Monday, June 17, and the Governor’s response due on Tuesday, June 18.

The appellate division opinion does not do a whole lot to clarify the meaning of the relevant New Jersey law, IMHO, but it does raise what appears to be another significant legal and practical problem with holding two elections in such a short period.

The court begins its analysis with the proposition that “[b]ecause Senator Lautenberg died on the day prior to the primary election, N.J.S.A. 19:27-6 governs.” Under this provision, the vacancy would be filled at the “second succeeding election” (i.e., in November 2014) unless the Governor calls a special election. The court states that “[w]ithout question, the Governor was authorized to call a special election in this circumstance, where the vacancy occurred one day prior to the primary.”

But what about N.J.S.A. 19:3-26, which appears to require that the vacancy be filled at the next general election (i.e., in November 2013) unless the vacancy occurred less than 70 days before that general election (which it did not)? The court does not attempt to reconcile this provision with 27-6 nor to explain how one would resolve the conflict between the two provisions if the Governor did not call a special election. It does state at one point that “[w]ithout a special election, this seat would be filled by an appointee for the remainder of the term.” That suggests that 27-6 would control (although, even then, the appointee would only serve until November 2014, not until the expiration of the term in January 2015). But the court offers no explanation as to why that would be the case.

The court also rejects the plaintiffs’ argument that 3-26 precludes the Governor from calling a special election. It evinces some sympathy for the Governor’s position that 3-26 permits the calling of a special election under any circumstances, not merely where the vacancy occurs less than 70 days before the general election. The Governor relied on the punctuation in 3-26, which (you may recall) provides:

If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

According to the Governor, “the comma preceding the authorizing clause” (i.e., the comma immediately preceding the second “unless”) demonstrates “the Legislature’s intention to authorize a special election whether the vacancy occurs fewer or more than seventy days before the general election.” Maybe this is right, although it seems to me that the Legislature would have more clearly expressed this intention if it had used the word “or” instead of the comma, but I suppose this might have created an ambiguity as to which “unless” clause governs if both apply.

In any event, the court did not seem to be completely convinced by the Governor’s argument because it stressed that it was limiting its holding to the situation in which the Governor was already authorized to call a special election under 27-6: “In this circumstance, it would be wholly absurd to conclude that the Legislature intended to authorize a special election in N.J.S.A. 19:27-6 and preclude it in N.J.S.A. 19:3-26, even if the punctuation the Legislature chose did not support a contrary reading, as the punctuation used plainly does.” In other words, if Lautenberg had died the day after the primary election, instead of the day before, the court is not deciding whether Christie would have had the authority to call a special election under 3-26, although it seems to be leaning toward the conclusion that he would.

As for the timing of the special election, the court held that this was a matter within the Governor’s discretion. Although 27-6 tightly constricts the Governor’s discretion as to dates for the special primary and special elections once he issues the writ, there is no specific time set for issuing the writ. According to the court, the Legislature therefore must have intended the Governor to have a wide discretion in selecting the date of the special election:

Without question, the Legislature has authorized the Governor to select the date of the special elections, which can be accomplished by assigning the statutory dates backward from the date for a special general election that the Governor deems advisable before issuing the writ.  The Legislature could have, but did not, limit that discretion, and its breadth must have been as obvious to the Legislature at the time it was written as it is now. Because of the date of Senator Lautenberg’s death, this special election could have been scheduled for the same date as the general election.

The court seems to be saying that the Governor can indefinitely delay the issuance of the writ of election in order to set whatever date he wants for the special election. This seems to me to be a less than obvious conclusion. An equally if not more plausible inference from the legislature’s failure to specify a date for issuing the writ is that the legislature intended that it be issued either forthwith or within a reasonable time of the occurrence of the vacancy. In this case that might have allowed the Governor to set the special election on the same date as the general election. But the court’s assumption that the legislature intended for the Governor to have a broad discretion in choosing when to issue the writ seems to be in some tension with the very limited discretion it gave him once the writ issues.

Finally, the court declined to second guess the Governor’s decision to hold the special election on October 16, rather than on the date of this year’s general election, November 5. The issue of the cost of holding a separate election was a policy issue, the court sensibly concluded, that was not for judges to decide. However, the court did express a serious concern with the logistical difficulties involved in using the same voting machines in two statewide elections in such close proximity. It noted that the machines by law must be impounded for a 15 day period after the October 16 election, which would seem to make it extremely difficult to have them ready in time for their use in the November 5 general election. Although the court did not believe that the evidence provided by the plaintiffs warranted invalidating the writ, it left open the possibility of future challenges on this ground:

We view the potential for problems it may create in conducting the general election at this point as a matter committed to the Governor and relevant to his determination as to whether the date of this special election, dictated by his writ, is “advisable.” In our view, there is no question of statutory or constitutional violation that is ripe, and, as the State’s Chief Executive Officer, the Governor’s policy decision and assessment of the feasibility of accomplishing it is not reviewable.

(emphasis added).

This issue strikes me as raising a greater danger, both legal and practical, to the viability of Christie’s action than the attack on his authority to call a special election in the first place. But I guess we will see what the New Jersey Supreme Court thinks.

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“We are pleased that the jury acquitted Mr. Renzi on 15 counts”

Former Congressman Rick Renzi’s attorney, who is responsible for the quote above, is obviously a glass-half-full type of person. As it happens, Renzi was also convicted on the other 17 of the 32 counts against him (so the glass was not quite half full). You can read the verdict form here.

The linked Washington Post story indicates that Renzi intends to appeal. I am sure that there will be Speech or Debate issues presented on appeal, although some of Renzi’s potential arguments may be foreclosed or made more difficult by the prior Ninth Circuit ruling in his case. It should also be noted that some of the counts on which he was convicted (e.g., Counts 28-30) involve insurance fraud/false statements that appear to be unrelated to his legislative activities or official duties. Therefore, Renzi will not be able to argue for a complete reversal of the verdict based on Speech or Debate alone.

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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”