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The Strange Case of Scott Bloch

Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get the irony.

Anyway, by and by this attracted the attention of congressional investigators, who requested a transcribed interview with Bloch. During the interview, they asked Bloch about an incident where he had used an outside service, Geeks on Call, to perform something called a “seven level wipe” on certain computers at the Office of Special Counsel, including his own. The suspicion was that he wanted to remove evidence that would substantiate some of the allegations against him.

According to a later information filed against him, Bloch, “having been requested by the House Oversight Committee to provide information upon a matter of pertinent inquiry before the Committee, unlawfully and willfully did make default by refusing and failing to state fully and completely the nature and extent of his instructions that Geeks on Call perform ‘seven level wipes’ on [the computers in question].”

Bloch entered into a plea agreement, in which he agreed to plead guilty to a single misdemeanor count of contempt of Congress, 2 U.S.C. § 192. Under the plea agreement, the prosecution would not oppose “a sentence at the low end of the applicable Guidelines range,” which the agreement calculates as “0 to 6 months.” In other words, the prosecutors promised that they would not object to Bloch’s position that he should serve no jail time (although the actual sentence would be up to the court).

After Bloch pled guilty, however, the U.S. Probation Office prepared a presentence report that noted the minimum sentence for contempt of Congress is one month in jail. This did not require any lengthy legal research; the statute provides on its face that the offense is punishable by “imprisonment in a common jail for not less than one month nor more than twelve months.”

Nevertheless, both Bloch’s lawyers and the prosecution objected. They pointed out that the last two prosecutions for contempt of Congress had resulted in sentences of probation. In the most recent case, United States v. Miguel Tejada, 09-mj-077, the defendant, who pled guilty just a year before Bloch, was given probation and the Probation Office did not raise any objection.

The magistrate judge did not buy it. Not only did she conclude that the statute was clear on its face in requiring a one month minimum sentence, but she refused to allow Bloch to withdraw his guilty plea. She was clearly irked by the joint position of the prosecution and defense that Bloch should be allowed to negotiate a new plea deal in which he would plead guilty to a different offense (presumably one that would permit no jail time). Responding to this suggestion, she stated “[c]onfidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.”

Maybe so, but it seems to have escaped notice that Bloch could not have committed the offense to which he pled guilty. The contempt of Congress statute provides that “[e]very person who having been summoned as a witness . . . to give testimony . . .  upon any matter under inquiry before . . .  any committee of either House of Congress, willfully makes default, or who having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor. . . .”

Bloch was not “summoned as a witness.” He was asked to provide a voluntary interview. He did not appear before a committee. He met with congressional staff. He did not “willfully make default” (ie, fail to appear). If he had refused to answer one or more questions posed by the staff, it does not seem that he would have violated the statute (and it is not apparent from the information whether he actually did refuse to answer questions). What Bloch apparently did was to fail to provide accurate or complete answers to questions regarding the computer incident. This may have violated the False Statements Act, but it is hard to see how it constituted contempt of Congress.

This is not the first time that the contempt of Congress statute has been used to convert the felony of lying to or obstructing Congress into a misdemeanor charge. Nor has it been a secret. In 1988, when Robert McFarlane pled guilty to contempt of Congress, the New York Times pointed out that what McFarlane did was not actually contempt of Congress, but lying to Congress. Nevertheless, it noted that prosecutors used the “euphemism” of equating lying to Congress with a refusal to answer questions as a means of reducing the charge from felony to misdemeanor. This technique was also used in the plea bargains of Richard Kleindienst and Richard Helms.

Furthermore, even if Bloch had committed the offense to which he pled guilty, the court would not have had jurisdiction to convict him. The D.C. Circuit has held that a conviction for contempt of Congress is invalid unless the contempt has first been properly certified by the House or Senate (or, during adjournment, by the Speaker or President of the Senate) to the U.S. Attorney under 2 U.S.C. § 194.  Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). (Indeed, the reason that there is a minimum sentence for contempt is undoubtedly to ensure that the U.S. Attorney is sufficiently vigorous in acting on such a congressional certification). No such certification was made here.

In short, it appears that Bloch pled guilty to a crime that he didn’t commit in order to get a sentence to which he was not entitled from a court that was not empowered to pronounce one. Chief Judge Lamberth has now reversed the magistrate judge, finding that Bloch should have been allowed to withdraw his guilty plea. Judge Lamberth seems to have accepted the view that contempt requires a minimum one month sentence, however. Thus, it will be harder for this provision to be used as the basis for plea bargains in the future.

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House Ethics Committee and a Breach of Confidentiality

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.

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A Question about the Billy Martin Contract

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?

 

 

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Bridge over Troubled Waters: Some Unsolicited Advice for the House Ethics Committee

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.

 

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Would it be “Unconstitutional” to Veto a Debt Limit Increase?

From the President’s veto message:

This bill would make it almost inevitable that the Government would default for the first time in our history. This is deeply irresponsible. A default has never happened before, and it should not happen now.

I have repeatedly urged the Congress to pass promptly legislation raising the debt limit for a reasonable period of time to protect the Nation’s creditworthiness and avoid default. Republicans in Congress have acknowledged the need to raised the debt limit [but] [t]his bill would threaten the Nation with default. . . .”

No, the Obama administration has not given me an advance copy of its planned veto should the Congress pass a short-term extension of the debt limit. The language quoted above is from President Clinton’s November 13, 1995 veto of H.R. 2586, which would have provided for a temporary and very short-term (one month) increase in the debt limit during the budget battle of 1995-96. (Incidentally, I learned about this veto from this helpful background report from the Committee for a Responsible Budget).

There are several things to note about this veto message. First, it raises precisely the same issues as have been debated in our current “unprecedented” debt limit crisis. Second, although it uses the same language that has been used to describe the position of the current Congress (“deeply irresponsible” to “threaten the Nation with default”), there is no claim that Congress’s failure to raise the debt limit in accordance with the president’s wishes is unconstitutional.

The message makes no mention of the Public Debt Clause. And there is no trace of a suggestion that the president has the authority to raise the debt limit on his own, notwithstanding the assertion of former President Clinton that this is what he would do if he were in President Obama’s shoes.

One can also ask whether, under Clinton’s theory, his 1995 veto was itself unconstitutional. After all, if the Constitution requires the Congress to raise the debt limit to avoid default, it must be the case that the President is constitutionally obligated to sign the bill that would raise the limit.

Of course, the constitutional arguments against the debt limit have generally relied on a “principle” (as opposed to a specific rule) that seems to turn on subjective judgments about motivation, such as who is acting “irresponsibly,” “dishonestly,” or “dishonorably.” Professor Dworkin, for example, says that the congressional Republicans are acting unconstitutionally because they know that their actions will make “default inevitable.” One wonders whether the same principle would extend to the 1995 bill, which allegedly made default “almost inevitable.”

No doubt the scholars making these arguments could review an Obama veto message and determine that it was constitutional because based on a sincere desire to protect the nation’s creditworthiness. But these scholars would have to concede, as a logical matter, that under their theory it is possible for a presidential veto of a debt limit increase itself to be unconstitutional. And if a president can decide that the Congress is unconstitutionally “threatening default” by failing to raise the debt limit, surely Congress could similarly decide that the president is unconstitutionally doing the same by vetoing such a bill.

What happens then? If the president issues what Congress views as unconstitutional veto, couldn’t Congress contend that the debt limit increase is nonetheless effective? Such a theory could be tested in court.  Those who were harmed by the administration’s failure to borrow money (such as Social Security recipients) would presumably have standing to challenge the alleged constitutional violation.

What a tangled web.

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Has Obama Already “Invoked” the Public Debt Clause?

Jack Balkin says yes. Balkin argues that by telling bondholders that they will get paid regardless of whether the debt limit is raised, the President is implicitly invoking the Public Debt Clause.

I say no (or, rather, not necessarily). One could construe the existing statutory scheme to permit prioritization wholly apart from any constitutional issue. (Indeed, given the executive branch’s normal proclivity to expand its own power, it would be somewhat surprising if it did not do so). This point is illustrated by the GAO’s 1985 opinion referenced in my last post.

Moreover, even if the executive branch were to use the Public Debt Clause or (more appropriately, IMHO) the Perry case to construe congressional silence in favor of prioritization, this is not the same thing as “invoking” the Constitution to override a congressional command. It is perfectly possible to conclude that the Constitution requires Congress to repay bondholders without believing that it gives the President the right to steal the power of the purse.

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Prioritizing Payments if the Debt Limit is Reached

This CRS report from early June discusses a number of legal and policy issues (not including the Public Debt Clause) that would arise should Congress not raise the debt limit. Of particular interest is its discussion of the Treasury Secretary’s authority to prioritize payments once the debt limit is reached:

Some have argued that prioritization of payments can be used by Treasury to avoid a default on federal obligations by paying interest on outstanding debt before other obligations. Treasury officials have maintained that the department lacks formal legal authority to establish priorities to pay obligations, asserting, in effect, that each law obligating funds and authorizing expenditures stands on an equal footing. In other words, Treasury would have to make payments on obligations as they come due. With regard to this view, Treasury recently noted that an attempt to prioritize payments was “unworkable” because adopting a policy that would require certain types of payments taking precedence over other U.S. legal obligations would merely be a “failure by the U.S. to stand by its commitments.”

In contrast to this view, GAO wrote to then-Chairman Bob Packwood of the Senate Finance Committee in 1985 that it was aware of no requirement that Treasury much pay outstanding obligations in the order in which they are received. GAO concluded that “Treasury is free to liquidate obligations in any order it finds will best serve the interests of the United States.” In any case, if Treasury were to prioritize, it is not clear what the priorities might be among the different types of spending.

While the positions of Treasury and GAO may appear at first glance to differ, closer analysis suggests that they merely offer two different interpretations of Congress’s silence with respect to a prioritization system for paying obligations. On the one hand, GAO’s 1985 opinion posits that Congress’s legislative silence simply leaves the determination of payment prioritization to the discretion of the Treasury Department. Conversely, Treasury appears to assert that the lack of specific legislative direction from Congress operates as a legal barrier, effectively preventing it from establishing a prioritization system.

The missing piece of this analysis is the constitutional issue. If one believes, as some do, that the Public Debt Clause prohibits default on the “public debt,” then the President is required to prioritize those payments that fall within that constitutionally protected category. This is Jack Balkin’s conclusion.

Personally, I am skeptical that the Public Debt Clause, of its own force, requires the President to do anything, other than not to repudiate or renounce the public debt (which he would lack the authority to do anyway). However, there is a plausible argument that the constitutional principle recognized in Perry v. United States requires that the public debt be repaid in accordance with the terms on which it was borrowed. This would be an extension of Perry’s reasoning, but a plausible one. If that is the case, then the President would be obligated to interpret congressional silence in accordance with this constitutional principle. At the least, the avoidance of constitutional doubt would seem to counsel for an interpretation of the statute that allows for prioritization.

 

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Can Representative Waters Take the Ethics Committee to Court?

According to this Politico story, “Rep. Maxine Waters (D-Calif.) is threatening to take the House Ethics Committee to federal court if the secretive panel charges her with any violations of House rules.”

This statement appears to reflect a misunderstanding of a letter sent by Stan Brand, Waters’s attorney, to the chairman and ranking member of the Ethics Committee on July 19. Although Brand asserts that “the Committee’s actions in this matter have concluded and that any further action, save from formal acknowledgement of dismissal, is legally precluded and indefensible,” he knows full well that no federal court will grant relief against the Ethics Committee with regard to its ongoing disciplinary proceedings. Thus, his letter does not threaten to “take the Committee to court” in order to have those proceedings enjoined or declared invalid.

Instead, Brand threatens a federal court action with respect to one particular aspect of his grievances against the Committee, namely the alleged “illegal leaking of confidential Committee documents, transcripts, emails and other information to the media to create a misimpression regarding both the strength of the case against [Waters] and the Committee’s ability to proceed with this case.” Brand contends that this conduct (a) is unprotected by Speech or Debate and (b) implicates Waters’s constitutional and statutory rights.

It is certainly true that, under existing case law, there is no necessary constitutional barrier to a federal court action alleging that a member or staffer of the Ethics Committee has leaked information to the media. See Boehner v. McDermott, 483 F.3d 573 (D.C. Cir.), cert. denied, 128 S.Ct. 712 (2007) (upholding civil judgment against member of Congress who leaked an illegally recorded tape recording which had been given to him in his capacity as ranking member of the Ethics Committee). It is, however, not obvious what constitutional or statutory right might give rise to a cause of action for the leaking Brand alleges. Brand’s letter does not say.

Assuming that there is a viable cause of action (and assuming that it is not barred, for example, by the Federal Tort Claims Act) based on the alleged leaking, it would seem most likely that it would lie against the individuals responsible, not against the Committee itself. Any attempt to sue the Committee itself over the alleged leaking would face serious constitutional hurdles, such as Speech or Debate, sovereign immunity and separation of powers.

In short, the chances of Representative Waters obtaining any relief against the Ethics Committee in federal court are so remote that it seems highly unlikely that she would bring such an action. And there is no chance that any court would review or interfere with the committee’s investigatory or disciplinary decisions.

 

 

 

 

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OCE Funding in Jeopardy?

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.

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CREW Has Some Explaining To Do

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.