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More on the Craig Admonishment

Simon Davidson, the ethics columnist for Roll Call, responded to the points I made in yesterday’s post regarding the Senate Ethics Committee’s admonishment of Senator Larry Craig.  Set forth below is our exchange of emails, reprinted with Mr. Davidson’s kind permission.

Mr. Stern:

Thank you for your e-mail regarding my column.  While I had considered the points you raise regarding the Ethics Committee’s jurisdiction prior to writing my column, I think that you articulate those points particularly well in your blog post.  My own view is that reasonable minds can differ on what exactly the Ethics Committee considered was the basis for its jurisdiction.  In fact, that was part of my point: the committee did not explicitly base its jurisdiction over purely personal conduct.  In any event, here are the conclusions I had reached regarding the specific points you raise. 

1. The committee wrote: “the conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” To me, the crucial phrase here is “together with.” On your blog, you implicitly construe “together with” to mean that the conduct to which Craig pled guilty and his subsequent conduct each independently could constitute a basis for jurisdiction. While I acknowledge that there is some ambiguity in the letter’s language, I think the more plausible reading of “together with” is that the Committee concluded that the conduct to which Craig pled guilty and his subsequent conduct jointly constitutes improper conduct reflecting discreditably on the Senate. Consider: A regular exercise routine alone does not constitute a healthy lifestyle. However, a regular exercise routine, together with a nutritious diet, constitutes a healthy lifestyle.

2. The committee’s letter cites language in the Senate Ethics Manual providing that the Senate “may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” This oft-cited language has been in the Senate Ethics Manual for years. However, in practice, the Ethics Committee has never relied upon this language in asserting jurisdiction over purely personal conduct, without some connection to official conduct. In its letter, the committee appears to go out of its way to construe Craig’s conduct as official conduct by tying it to specific Senate rules. Suppose, for example, that Craig had not flashed his Senate business card, had not challenged his guilty plea, and had obtained the committee’s pre-approval to use campaign funds for legal expenses? Would the Committee still have asserted jurisdiction over Craig? That’s the question that I think the letter leaves open.

Thanks again for your e-mail.

Kind regards,

Simon


Dear Mr. Davidson

Thank you for your thoughtful email. You make some excellent points, which cause me to refine my thinking as follows.

The committee’s reference to “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above” indicates that part of what Craig is being admonished for is the “purely personal” conduct to which he pled guilty. It is true that the use of the term “together with” leaves open the possibility that the committee would have adjudged that conduct, standing alone, as insufficient to justify an admonishment. But that is different from saying that the committee lacks jurisdiction (ie, power) to punish Craig for the conduct.

An alternative explanation, I suppose, is that the committee was really only exercising jurisdiction over the “related and subsequent conduct,” but was suggesting that the subsequent conduct merited admonishment only under the circumstances where Craig had committed the personal misconduct in the first place. One problem with that interpretation is that it makes little sense to suggest that the culpability of the “special treatment” request or the improper use of campaign funds depends on whether you are guilty of the underlying conduct.

That leaves the withdrawal of the guilty plea. There it does make some sense to say that the withdrawal of the guilty plea is improper only when one is actually guilty. But how is the withdrawal of the guilty plea any less personal than the underlying conduct itself? The committee says that the withdrawal of the guilty plea violated the ethical requirement that a U.S. Senator uphold the laws and never be a party to their evasion. But that conclusion (which seems a tad stretched, by the way) does not make the withdrawal of the guilty plea any more official than the underlying misconduct or the initial guilty plea itself.

Perhaps more importantly, when it came to directly addressing the question of jurisdiction, the committee could easily have said that it had jurisdiction only over the official aspects of Craig’s conduct or that it had jurisdiction over the personal aspects only because they related to official misconduct. But it did not do so. Instead, it pointed out that its jurisdiction extends to unofficial conduct which unfavorably reflects on the Senate as a whole.

Having said this, I agree with you to this extent. The committee clearly went out of its way to find things other than the underlying misconduct for which it could admonish the senator. For example, the idea that it was improper for Craig to show his business card and say “what do you think about that?” strikes me as rather ridiculous. I can’t imagine that the committee would have found this to be improper conduct if, say, Craig had been stopped for speeding. Similarly, as mentioned before, the withdrawal of the guilty plea seems like a shaky basis for admonishing Craig.

I suspect that this has less to do with the fact that Craig’s misconduct was personal than with the nature of the personal misconduct in question. If Craig had pled guilty to, say, kiting checks, I doubt that the committee would have been as uncomfortable admonishing him for that conduct alone. But the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators. That is different, however, from saying that committee lacks jurisdiction over purely personal matters.

Thanks again for your email and for your column, which I greatly enjoy. With your permission, I would like to post our exchange on pointoforder.com.

Best regards,

Mike Stern

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