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Bathroom Break

Today’s Roll Call editorializes that the Senate ethics investigation of Senator Larry Craig “should be dropped forthwith and the resources of the committee should be devoted to serious matters, notably charges that Sen. Ted Stevens (R-Alaska) had his home rebuilt by an oil executive who has admitted bribing elected officials.”  The grounds cited by the editors are as follows: (1) Senator Craig’s alleged conduct of soliciting sex in an airport bathroom, however embarrassing and unseemly, did not violate any Senate rule; (2) Senate rules and previous ethics cases have been limited to matters involving official misconduct of some kind (eg, bribery, acceptance of improper gifts, conflict of interest, financial disclosure violations); and (3) applying Senate discipline to Senator Craig for conduct unrelated to his official duties would amount to an ex post facto law. 

            While the wisdom of investigating the Craig matter can be debated, it incorrect to suggest, as the Roll Call editors do, that such an investigation would be illegitimate or beyond the proper jurisdiction of the Senate Ethics Committee.  The Constitution authorizes each House to “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”  As Justice Story explains in his classic 1833 treatise on the Constitution, it would be difficult to draw any limitation on the disciplinary power based on “the time, place or nature of the offence.”  He notes it is settled in the Senate that discipline may be imposed for “any misdemeanor” (meaning misbehavior) “inconsistent with the trust and duty of a senator,” regardless of whether the misconduct violates a statute, was committed in an official capacity, or took place in Congress or during session. 

            Moreover, the Senate Ethics Manual explains that “[t]he Senate has disciplined Members for conduct it has deemed unethical or improper, regardless of whether it violated any particular law or Senate rule or regulation.”  Nor does the misbehavior have to involve “official conduct in some fashion,” as the Roll Call editorial contends.  The Senate Ethics Manual quotes the following from the Senate Select Committee to Study the Censure Charges (against Senator Joseph McCarthy): “’It seems clear that if a Senator should be guilty of reprehensible conduct unconnected with his official duties and position, but which conduct brings the Senate into disrepute, the Senate has the power to censure.’” 

            Indeed, Roll Call’s own ethics columnist has written, in connection with Senator David Vitter’s alleged contacts with the “D.C. Madam,” that the Senate Ethics Committee could exercise jurisdiction over that matter, despite the fact that these contacts took place before he joined the Senate.  If this is true, it is difficult to see how Senator Craig’s alleged conduct would not fall within the Committee’s jurisdiction.

(It should also be noted that while Senator Craig’s alleged bathroom conduct was unrelated to his official duties, the same cannot necessarily be said about his subsequent actions. These include pleading guilty to the disorderly conduct charge without informing the Senate, making public statements about his conduct and announcing an intention to resign which he later disavowed.)

Admittedly the broad and subjective standards applicable to congressional ethics have a great potential for inconsistent application and in some cases may result in penalizing conduct that could not reasonably have been known to violate Senate (or House) norms at the time it occurred. Such, however, is a recognized consequence of the self-disciplinary regime established by the Constitution and congressional precedent. As the Supreme Court has noted, “the process of disciplining a Member of Congress . . . is not surrounded with the panoply of protective shields that are present in a criminal case. An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body. . .”

In any event, Senator Craig would seem to have little reason to complain about unfair or retroactive application of the Senate ethics process. Is it really so surprising that soliciting sex in a public restroom might be considered the sort of thing that could bring the Senate into disrepute?

Compare Senator Craig’s case to that of Representative Bob Filner, who is currently being investigated by the House Ethics Committee. Like Senator Craig, Representative Filner was at the airport, but rather than looking for love, Representative Filner was just looking for his luggage. When it failed to show up, Representative Filner apparently got upset, and allegedly pushed an airport employee and attempted to enter a restricted baggage area. The fact that this conduct had nothing to do with his official duties and was, at worst, a misdemeanor has not prevented the House Ethics Committee from opening an investigation of Representative Filner.

Perhaps Roll Call believes that sodomy in an airport bathroom is less reprehensible than throwing a temper tantrum over lost luggage. Fair enough. But it should recognize that this is a subjective and value-laden judgment on its part, not a distinction of a legal or constitutional dimension.

If Roll Call is truly concerned about unfair and ex post facto applications of the congressional ethics rules, it should study the House Ethics Committee’s report on the Mark Foley matter. As I will explain in a later post, this report applied standards to members and staff that could not possibly have been envisioned at the time that the alleged conduct took place. Yet this report was widely condemned, not for being too harsh, but for being too lenient.

Finally, I would note that Roll Call’s reference to Senator Stevens is simply a red herring. There are many potential ethics investigations that the House and Senate Ethics Committee have deferred on the theory (some might call it a pretext) that such investigations could interfere with criminal investigations being conducted by the Department of Justice. Whether this is a valid theory, as applied to Senator Stevens or anyone else, has nothing to do with whether there should be an investigation of Senator Craig. The Senate Ethics Committee has, or can easily acquire, the resources to investigate both Senators Craig and Stevens, should it so choose.

2 Comments

  1. Tricia says:

    I agree that Roll Call’s judgment is subjective and value-laden, but I feel I must point out that the alleged crimes being compared are mere *solicitation* of sodomy in an airport bathroom versus an *assault* in the midst of a temper tantrum over lost luggage.

  2. Jason says:

    Technically, the crimes being compared are assault versus disorderly conduct. That is what Craig pled to. Despite the impression left by the media coverage, he did not admit to soliciting sodomy and wasn’t charged with it. Nor did he admit to the “interference with privacy” charge. I don’t think a nexus to official Senate duties is necessary, but even if it were, failure to inform the Senate is a pretty good one that I hadn’t considered before. Of course, the big question for me is whether the people beating the drums to get Craig to resign or be expelled felt the same way about Rep. Barny Frank’s boyfriend running a house of prostitution out of Frank’s apartment or Gerry Studds’ defiantly unrepentant relationship with a 17 y/o House Page. If so, then okay. But if not, then why not? Party affiliation perhaps?

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