A Discussion of Congressional Legal Issues
From Gene Weingarten’s most recent Below the Beltway:
Me: Is this Tom Susman?
Tom: Yep.
Me: I cannot help but notice that you are identified as the “ethics chairman” of the American League of Lobbyists.
Tom: That’s correct.
Me: So, is that a no-show job? Like “etiquette chairman” of the World Wrestling Federation?
Tom: Or Lamaze instructor at a convent.
Stop it, you guys are killing me.
The House’s Special Task Force on Ethics Enforcement (or, more precisely, the Democratic members thereof) recommends the establishment of a six member board to govern the new Office of Congressional Ethics. Three of the board members would be designees of the Speaker and three would be designees of the Minority Leader. Although the Speaker and Minority Leader would be encouraged to agree on all of the board members and make joint appointments, in the absence of agreement the leaders could separately appoint their own designees.
The Task Force states that the board should be “comprised of individuals of distinction and high qualification.” It gives examples of the types of individuals to be considered as including “former Members of Congress, former Congressional staff, former state legislators [and] former judges.” Although the resolution it proposes would establish that selection and appointment of board members be “without regard to political affiliation,” it seems likely that the board would consist of three Democrats and three Republicans (the Task Force itself refers to “bipartisan balance” in the composition of the board). Thus, it would in essence duplicate the composition of the House Ethics Committee, which is evenly split between the two political parties.
The Task Force considered whether the OCE should be overseen by a single director rather than a board. It rejected this course, however, on the grounds that this would give too much power to a single individual. The Task Force asserted that in the past “special counsel was hired, either by the Standards Committee or some other Congressional entity, who was widely seen as having overstepped the appropriate extent of his or her authority.” It expressed concern about “investigations that stray from the original allegations of misconduct, and about individuals who use such unique positions of power to lay the foundation for their own future careers.”
I do not find this reasoning persuasive. In the first place, there is an inherent tension between the goal of ensuring OCE’s independence and that of ensuring that it does not overstep its authority. To the extent that having a board promotes the latter goal, it likely does so at the expense of the former. If the board is risk averse, it will hesitate to undertake any inquiries that might be controversial.
Second, the composition of the board would seem to create incentives similar to those that currently impact the House Ethics Committee itself. The types of people described by the Task Force as candidates for the board will probably have strong political affiliations (and ties to the Speaker or Minority Leader). Even if the members of the board are jointly appointed, they are going to have some degree of loyalty to the leader who designated them. If an inquiry is proposed for Democratic Representative A, there will be a natural tendency for the Democratic appointees on the board to resist, or to suggest that there should also be an investigation of Republican Representative B. This dynamic has often resulted in paralysis of the Ethics Committee, and could have the same impact on the OCE.
Third, there are significant differences between the incentives facing a “special counsel” to a congressional committee and the director of an office like the OCE. The former serves for a brief time (usually a matter of months), often while continuing to serve private clients from his or her law practice, and is responsible only to one or at most a handful of Members. The special counsel, therefore, may have an incentive to promote his or her private law practice (by making as big a splash as possible with the investigation) and less reason to consider the larger institutional interests of Congress.
By contrast, the director of the OCE would work full time for the House of Representatives, and would presumably serve for a period of years. If appointed jointly by the Speaker and the Minority Leader (or, preferably, by a resolution of the House itself), the director would not be loyal to a particular member but to the House as a whole. The director would less invested in the outcome of any particular matter (as compared to a special counsel), but would be more interested in building and preserving the reputation of the OCE as an effective and impartial enforcer of House rules.
An OCE run by a single individual would be more accountable and in all probability more vigorous than one run by a group of people who, however capable and well-intentioned, will be beset by the problem of internal disputes and disagreements which always occur when an enterprise is run by committee. A board (particularly one composed of high profile individuals) will also have more difficulty operating in a confidential manner than would a single director.
As described by my last post, the British have developed an effective system of ethics enforcement with a single individual serving as the Parliamentary Commissioner. One of the key features of the British system is the fact that the Parliamentary Commissioner is appointed by resolution of the House of Commons for a five-year non-renewable term, and similarly can only be removed by vote of the House itself. This gives the Commissioner considerable independence, and, since he can only serve a single term, less incentive to curry favor with the powers that be.
Of course, it is essential that such a position be filled by someone who is not only capable and honest, but who has a judicious temperament and a firm understanding of the proper role of his or her office. The British have been able to find well-suited persons, such as Sir Philip Mawer, to fill the role of Parliamentary Commissioner. Surely the House of Representatives could find a qualified and honorable individual, unconsumed by ambition, to serve as the director of the OCE.
As it takes up the question of how to structure an independent ethics enforcement office, the House of Representatives would do well to consider the experience of the British Parliament. In 1995, the House of Commons established the Parliamentary Commissioner for Standards, an independent official appointed by Parliament to handle ethics matters. Josh Chafetz has argued in a recent article that the Parliamentary Commissioner represents a promising model for congressional ethics reform.
The Parliamentary Commissioner’s principal duties are: (1) to maintain the “register of interests” that identifies certain significant financial interests (eg. paid employment, directorships, shareholdings, gifts, hospitality, land and property) of Members of Parliament and others which could potentially influence their parliamentary activities; (2) to provide confidential advice to MPs and others regarding the registration requirement; (3) to advise the Committee on Standards and Privileges (the British counterpart of the House Ethics Committee) on interpretation of the code of conduct; (4) to monitor the operation of the code of conduct and the register and to make any needed recommendations for improvement; and (5) to receive and, if appropriate, to investigate complaints from MPs or members of the public regarding failure to register interests, violations of the code of conduct or other inappropriate activity by MPs in their public life.
The last function is the most important. The Commissioner receives complaints filed by members of the public, but does not accept anonymous complaints or unsubstantiated allegations. If the Commissioner decides that the complaint lacks merit, he has the discretion to reject it without taking further action. (The Commissioner has also established procedures for dealing with frivolous or vexatious complaints).
If, on the other hand, the Commissioner is satisfied that the allegations have sufficient substance to justify a preliminary inquiry, he will ask the MP in question to respond. Following receipt of this response, the Commissioner may dismiss the complaint, reach a settlement with the MP (if the Commissioner finds that the infraction was minor or unintentional), or proceed to conduct a full investigation. If a full investigation is warranted, the Commissioner will ultimately report to the Committee on Standards and Privileges (the equivalent of the House Ethics Committee) with his findings and recommendations. The Committee may then conduct further inquiry, and will ultimately publish its own report along with the report received from the Commissioner.
As suggested by Josh Chafetz, the Parliamentary Commissioner model appears to be working successfully in
Via TPM Muckraker, Senator Tom Coburn has demanded a joint House-Senate investigation of the circumstances that led to the infamous Coconut Road earmark language, which was inserted into the 2005 Transportation Bill (allegedly on instructions of staff for then-House Transportation Committee Chairman Don Young) after final passage of the bill. Taxpayers for Common Sense had requested that the House Ethics Committee investigate the matter, but that request has predictably gone nowhere.
As I noted in a previous post, because this matter presents, at least at the outset, primarily a question of possible violations of parliamentary rules, practice or precedent, the House Ethics Committee is unlikely to take it up. It would be more appropriately investigated by a special panel or task force like that which was established to review the “stolen vote” on the 2008 Agriculture Appropriations Bill. In fact, I suggested that the House could broaden the mandate of the “stolen vote” vote panel to encompass this matter.
Senator Coburn’s proposal that a special House-Senate panel be created also makes a certain amount of sense. After all, because the House Enrolling Clerk evidently inserted language into the enrolled bill that the Senate had not agreed to, the Senate’s interests are directly implicated in a way that they would not be by more typical malfeasance or impropriety internal to the House.
Nonetheless, establishing a joint committee for this purpose would raise constitutional issues since Article I makes each House solely responsible for determining its own rules and disciplining its own members. Perhaps more importantly, it seems unlikely that either the House or Senate leadership will wish to establish a precedent for involvement of one body in the internal governance of the other.
At the end of the day, the best Senator Coburn can hope to do is to get a commitment from the House that it will investigate the matter and (perhaps) provide the Senate with a report of its conclusions. This would be a substantial accomplishment, however, and we here at Point of Order wish him the best.
From Chris Wallace’s interview of Representative Pete Hoekstra (ranking member of the House intelligence committee, also known as “HPSCI”) yesterday:
WALLACE: On Friday, the Justice Department moved to block congressional investigations of the destruction of these CIA tapes, saying that it would jeopardize its own probe.
Congressman Hoekstra, does that mean your committee is going to stand down?
HOEKSTRA: No, I don’t think so. I think what we’re going to do is we want to hold the community accountable for what’s happened with these tapes. I think we will issue subpoenas.
And once these witness appear in front of the committee, then I think we’ll have to make the decision as to whether we’re going to provide them with immunity or not. But our investigation should move forward.
At first blush, Hoekstra’s reference to the granting of immunity seems like a non sequitur. After all, he was asked whether HPSCI would continue its investigation of the tape destruction despite DOJ’s apparent opposition. What does that have to do with whether HPSCI might take the extraordinary step of granting immunity to witnesses, assuming that one or more of these witnesses invoke the Fifth Amendment privilege against self-incrimination?
The reference to immunity is understandable, however, in the context of Hoekstra’s prior experience in conducting investigations in parallel with ongoing DOJ investigations. In these situations witnesses who are cooperating with DOJ, even those who have already reached a plea agreement or immunity deal, will nonetheless assert a Fifth Amendment privilege vis a vis Congress. This practice stands the purposes of the Fifth Amendment on its head, since the privilege protects individuals from testifying in criminal trials, not in congressional hearings. However, by condoning or encouraging this practice, DOJ can frustrate congressional investigations that it views as nuisances.
An example of how this works is Duke Cunningham, the former congressman now serving time in federal prison for accepting millions of dollars in bribes. Cunningham’s plea agreement required him to cooperate with federal and state law enforcement agents and attorneys, and protected him against potential criminal prosecution for truthful statements made in the course of that cooperation. However, it did not (at least expressly) require cooperation with Congress. The plea agreement also gave DOJ a great deal of leverage over Cunningham because it promised him the possibility of a reduced sentence if his cooperation was satisfactory to the Justice Department.
As a consequence, when HPSCI wanted to interview Cunningham as part of its inquiry (which I led) into his activities as a member of the committee, his lawyer, Lee Blalack, refused to allow Cunningham to cooperate absent permission from the Justice Department. As Blalack more or less acknowledged, his concern was not really that Cunningham would be prosecuted for statements made to HPSCI—instead, he believed that DOJ might retaliate against Cunningham for cooperating with the committee by refusing to seek a reduction in sentence. In effect, this gave DOJ a veto right over Cunningham’s appearance before HPSCI. Thus, when DOJ not only refused to give permission for Cunningham to cooperate but actually asked HPSCI to stop trying to interview him, Blalack informed the committee that Cunningham would not cooperate voluntarily and, if subpoenaed, would assert the Fifth in response to any questions.
What do experiences such as this mean for HPSCI’s investigation into the tape destruction? The chances that HPSCI will actually grant immunity to any witnesses are slim at best. Nor should it do so, at least with respect to witnesses who are cooperating with federal law enforcement. Instead, HPSCI should insist that any agreements, explicit or otherwise, that DOJ reaches with witnesses must also provide for congressional access to these witnesses on the same terms. The Fifth Amendment is supposed to be a shield against compelled self-incrimination in criminal cases, not a sword for the executive branch to use against congressional inquiries.
Over at Balkinization, Marty Lederman is upset that the House and Senate intelligence committees conducted closed-door sessions to hear General Hayden’s account of how tapes of CIA interrogations were destroyed. He asks:
“Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn’t the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?”
I made several comments in response to Professor Lederman (these can be read in their entirety at Balkinization) along the following lines: (1) the House and Senate rules relating to public hearings are simply inapplicable to the Hayden sessions because these were briefings, not hearings; (2) the rules do not require any formal vote to close a briefing and, in fact, the House intelligence committee rules provide that all briefings are to be closed; (3) nothing in the House or Senate rules require committees to gather information by way of hearings rather than briefings or other methods; (4) even if these had been hearings, it is almost certain that the committees would have (properly) decided to close them because it would likely be impossible to have a robust discussion of this subject without getting into classified information; and (5) the responsible way for the committees to proceed is to first get General Hayden’s information in a closed session, as they have done, and then make the decision as to whether there is segregable non-classified information that can be heard in an open hearing or, alternatively, to vote to release any information (classified or non-classified) that they believe is in the public interest to disclose.
While acknowledging that the rules I cited allowed at least the House intelligence committee to proceed in the manner that it did, Lederman argues that the committees should have conducted hearings, rather than briefings, in this matter. He also suggests that if the committees had held hearings, they could not have been closed because the predicate for closing the hearings “likely is not present.”
This is simply wrong. The committees have both the authority and the obligation to close hearings whenever classified information will be discussed. The House intelligence committee rules, for example, provide that hearings shall be closed if the committee determines that disclosure of matters to be discussed may “endanger national security” or violate “any law” or House rule. The Senate rules similarly provide for closing hearings to avoid disclosure of matters “necessary to be kept secret in the interests of national defense” or which would violate “provisions of law or Government regulations.” Discussion of classified matters certainly falls under these provisions (as I think Lederman would concede).
Moreover, as I pointed out, the intelligence committees face significant legal and practical constraints with regard to classification matters. The executive branch makes classification decisions and the committees largely have to rely on the intelligence agencies to tell them what is and is not classified. So unless General Hayden and the administration agreed that the matters in question could be discussed in open session (which they surely do not), the committees would have little choice but to proceed in closed session.
Finally, I noted that there could be an argument that a full committee briefing in the Senate would be considered a “meeting” for purposes of the rules (and thus require a record vote in order to close). Although I was reasonably sure that it would not be, I checked with a very well informed source in the Senate, who confirmed my instinct that a committee briefing is not a “meeting” for purposes of the Senate rules. Thus, the Senate intelligence committee was not required to vote to close the Hayden briefing.
The second criticism of the (nearly) proposed Office of Congressional Ethics is that it will lack the power to subpoena witnesses and documents. This criticism, it seems to me, is misplaced. As a practical matter, the OCE should have adequate power to conduct preliminary investigations of ethical violations without compulsory process.
Presumably much of the information that OCE will need to review in any preliminary investigation will be in the direct control of the Member of Congress who is suspected of wrongdoing. OCE should be able to obtain this information, in most cases, simply by request to the Member. If the Member refuses, OCE could draw negative inferences against the Member and report the refusal to the House Ethics Committee. This prospect (as well as the potential for adverse publicity if the refusal becomes public) will likely be sufficient to induce most Members to cooperate.
Another category of information will be in the hands of persons closely associated with the Member, such as former staffers, political allies and contributors, and lobbyists who deal with the Member frequently. Again, however, the OCE should be able to use its leverage with the Member to obtain the needed information in most cases.
Of course, there will be instances in which the OCE will be unable to obtain information because of the absence of subpoena power. In these situations OCE will have to decide whether the information in question is absolutely critical to its ability to conduct an appropriate preliminary investigation. If so, OCE will be able to request that the House Ethics Committee use its subpoena power to compel the production of the information in question. Requiring OCE to take this step should not be overly burdensome. On the other hand, requiring OCE to justify its requests for compulsory process will substantially reduce the risk of its becoming an out of control “independent counsel” type of entity. So long as OCE is able to maintain credibility as a serious and impartial ethics watchdog, it should be to get the information it needs without subpoena power.
Details are emerging regarding the long-awaited proposal of the House Ethics Reform Task Force, which was charged with making recommendations to the House regarding the establishment of an independent ethics office. The proposal (which evidently has not been approved by the Republican members) will recommend the establishment of an “Office of Congressional Ethics,” which would conduct preliminary reviews of ethical violations and report its findings to the House Ethics Committee. The proposal is drawing criticism on two grounds: (1) the OCE would not hear complaints from outside groups, but would only self-initiate investigations and (2) the OCE would not have the power to subpoena witnesses or compel the production of documents. Today I will discuss the first criticism.
The reasons for prohibiting the filing of outside complaints are somewhat hard to fathom. As a practical matter, the OCE will have to get information about potential violations from somewhere, and presumably it will not refuse to consider information brought to its attention by outside parties. Indeed, Common Cause is supporting the proposal on the theory that it will be able to approach OCE officials informally with complaints.
So what is the difference between an informal complaint process and a formal one? Perhaps there is a feeling that allowing formal complaints would require the OCE to provide some sort of formal response (ie, accept the complaint or dismiss it) and would generate an expectation that OCE would take action on those complaints that were not rejected. However, the OCE could be permitted to disregard complaints that, on their face, failed to allege a cognizable violation of the rules and/or lacked a substantial evidentiary basis.
A formal system, moreover, has some advantages over an informal one. The complainant can be required to satisfy standards of pleading, such as a requirement that the complaint allege facts sufficient to establish a violation and provide some evidentiary substantiation for those allegations. A formal complaint would enable the OCE to focus on whether the alleged facts, if proved, would violate an ethical rule and permit it to narrow the issues before commencing a preliminary investigation.
To further ensure that complaints are reliable, the privilege of filing could be limited to members of an “ethics bar” that OCE would establish. Complainants and counsel who file unsubstantiated allegations or otherwise fail to meet standards set by OCE could be suspended or disqualified from future filings.
On the other hand, if the OCE is not permitted to consider outside complaints, it is difficult to see how it can achieve the goal of strengthening public confidence in the ethics process. Critics will justifiably note that this sends a message will discourage witnesses from coming forward with information that might be damaging to a Member of Congress. If OCE only hears complaints from other Members of Congress, why should an ordinary witness, whether a congressional staffer, an executive official or a private citizen, feel that he or she will be taken seriously by OCE? This is the same fundamental problem that has plagued the House Ethics Committee for the past decade, and merely outsourcing the ethics function will not make the problem go away.
In short, the absence of a procedure for filing outside complaints would be a serious weakness in any proposal to establish an OCE. Unless OCE can consider such complaints or develop an alternative mechanism for bringing information forward from ordinary witnesses, it may be perceived as little more than a sham for continuing a discredited ethics system.
Today I attended a DC Bar program entitled “Politics Inside the Department of Justice: Did the Bush Administration Cross the Line?” The panel consisted of Bud Cummins, (former U.S. Attorney for the Eastern District of Arkansas, one of eight
The most interesting insights came from Cummins, who gave a candid and balanced assessment of the
During the discussion, Savage referred to the May 11, 2006 email sent by Kyle Sampson, telling another DOJ official that “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.” Although the email says nothing about what the “real problem” was, Savage argued that the timing suggests that Lam’s firing was related to the search warrant executed on CIA official Dusty Foggo a couple of days later.
After the panel discussion, I talked with Savage, who seems like a nice young man, and tried to persuade him that this inference is patently ridiculous. As I explained to him, there is absolutely no evidence that (a) Sampson knew anything about the Foggo search warrant, or (b) anyone at DOJ or the WH cared about, or ever tried to stop, either the Foggo search warrant or the Cunningham investigation more broadly. Add to this the fact that Lam was on the list of US attorneys to be fired long before there was a Cunningham investigation, and the fact that there are other DOJ emails in the same time frame indicating that the “real problem” with Lam related to her handling of immigration cases and had nothing to do with Cunningham or Foggo. (I have written a more extensive analysis of this issue, which I will put up on this site once we get the capability).
Savage didn’t dispute these facts and said that he wasn’t asserting that Lam had in fact been dismissed for reasons relating to the Foggo/Cunningham investigation, only that there was evidence (“smoke” as he put it) to suggest the possibility. I suggested that if he really believes this, he should investigate and determine whether there is any substantiation for this theory. He is an investigative reporter after all.
In his confirmation hearing, Attorney General-designate Michael Mukasey was asked for his views on possible criminal contempt of Congress charges against executive officials such as Harriet Miers and Josh Bolten. Mukasey told the Senate Judiciary Committee that if an official who had asserted executive privilege was referred for contempt of Congress, he would look at whether the US Attorney could say that it was unreasonable for the official to have relied on “the privilege or the order of the President.” Mukasey explained that unless the US Attorney could say that the reliance was unreasonable, the person “can’t be found to have had the state of mind necessary to warrant charging her or him with criminal contempt.”
At first blush, Mukasey’s position might seem to represent a significant shift from the executive branch position reflected in a 1984 Office of Legal Counsel opinion and followed by Republican and Democratic Administrations since. The OLC opinion argued that the congressional contempt statute simply does not apply to an executive official who carries out the President’s claim of executive privilege. It based this conclusion both on the legislative history and historical implementation of the statute, and on the claim that the statute would be unconstitutional were it applied in this context. The opinion in fact states that “[t]he President, through a United States Attorney . . . may not . . . prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.”
Mukasey’s statement, although ambiguous, implies that the congressional contempt statute could be applied in some circumstances to an official who asserted executive privilege on the President’s behalf. It also suggests that the difficulty in prosecuting such an official would not lie in any special protection for the assertion of executive privilege, but in the need to establish that the official had the mens rea necessary to violate the statute.
If this is Mukasey’s view, however, it is inconsistent with the Supreme Court’s holding in Sinclair v. United States, 279 U.S. 263 (1929), where the Court made clear that an honest mistake of law is not a defense to a charge of violating the congressional contempt statute: “There is no merit in appellant’s contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.”
On the other hand, Mukasey’s view may be that executive officials, unlike private citizens, are immune from prosecution for contempt when they have a mistaken, but reasonable, view of the law. If so, the difference between his position and that of the OLC opinion may be less than appeared at first. It presumably would be a very rare circumstance where the Justice Department found that an official’s reliance on instructions of the President or on the written advice of the Department itself was unreasonable. Indeed, it could turn out that Mukasey’s statement was nothing more than a more diplomatic and judicious-sounding phrasing of the executive branch’s longstanding position on congressional contempt referrals.