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Was OCE’s Referral to the Justice Department Ultra Vires?

On May 27, 2010, the Office of Congressional Ethics (OCE) announced that its Board had voted unanimously to refer to the Justice Department “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbying firm.”   The announcement contends the referral to the Justice Department was authorized “pursuant to Section 1(f)(B) of House Resolution 895 of the 110thCongress and Rule 13 of the OCE Rules for the Conduct of Investigations.”   However, for the reasons described below, I think the Board exceeded its authority in making this referral.

House Resolution 895 is the resolution which established OCE and provides it with its authorities.  Nowhere in that resolution is there any explicit authorization for OCE to make referrals or provide information to the Justice Department or any law enforcement authorities. Section 1(f)(B), on which OCE relies, provides as follows: “No testimony received or any other information obtained as a member of the board or staff of the Office shall be publicly disclosed by any such individual to any such person or entity outside the Office.  Any communication to any person or entity outside the Office may occur only as authorized by the board as necessary to conduct official business or pursuant to its rules.”

This section is evidently designed to sharply limit disclosures by OCE to any outside individual or entity.  Such an interpretation is consistent with the intent of the House task force that recommended the establishment of OCE.  The task force made clear that OCE’s work in conducting preliminary investigations and review of ethics matters would be conducted confidentially.   Report of the Democratic Members of the Special Task Force on Ethics Enforcement 10 (Dec. 2007) (“To ensure confidentiality and responsibility in the opening steps of the ethics process, the OCE will conduct all of its proceedings and deliberations in executive session.”)

Section 1(f)(B) does recognize that there will be circumstances under which OCE will need to have communications with outside persons or entities.  The House did not try to anticipate all of the circumstances in which such communications might be necessary, and it provided the OCE Board with the power either to authorize a particular communication or to adopt rules that would authorize a particular category of communication.  This rulemaking authority, however, can reasonably be read only to allow the Board to authorize narrow categories of disclosure necessary to conduct OCE’s business or achieve its objectives; otherwise, it would grant the Board the authority to eviscerate the entire confidentiality scheme.

The Board itself initially seems to have interpreted its authority in this limited fashion.  The draft rules that it distributed for public comment would have authorized OCE to provide information to state or federal law enforcement only in cases of “imminent harm or threat to public safety.”   This rule would have limited OCE to providing information to law enforcement only where there was a true necessity. However, the draft rule was criticized by groups like Citizens for Ethics and Responsibility in Washington as “unjustified and unwise.”  They wanted OCE to be able to refer evidence of legal violations, regardless of whether there was any imminent harm. Apparently in response to this criticism, the Board substantially broadened the rule (I do not know whether the House or the general public was given an opportunity to comment on the revised rule).

As ultimately promulgated, Rule 13 (D) of the OCE Rules of Investigation provides that “[t]he Staff, in consultation with the Chairman and Co-Chairman, may refer information to state and federal authorities in the event that information indicates a crime has occurred or is about to occur.”  This is the authority relied upon by OCE in making its PMA referral.

As interpreted by OCE, therefore, Rule 13 permits OCE to refer any evidence of criminal violations to federal or state authorities, regardless of the nature of the violations, the strength of the evidence, or the urgency of the matter.  Even more importantly, it permits OCE to refer evidence even after the same evidence has been submitted to the House Ethics Committee.  In the case of the PMA referrals, the House Ethics Committee received and reviewed the evidence, and concluded that no violations had occurred.  Whatever one thinks of this decision, it seems clear, under the ethics enforcement regime established by the House, that the decision was one for the Ethics Committee to make.

Moreover, House Rules explicitly provide for the circumstances in which the Ethics Committee can make referrals to law enforcement authorities.  House Rule XI, cl. 3(a)(3) provides that “[t]he committee may report to the appropriate Federal or State authorities, either with the approval of the House or by an affirmative vote of two-thirds of the members of the committee, any substantial evidence of a violation by a Member, Delegate, Resident Commissioner, officer, or employee of the House, of a law applicable to the discharge of his responsibilities that may have been disclosed in a committee investigation.”

In other words, even if a majority of the Committee believes that there is evidence warranting referral to the Justice Department, they may not be permitted to make such a referral.  But under OCE Rule 13 as interpreted by the Board, OCE’s staff could refer evidence even after (as here) the Committee unanimously determined that it warranted neither referral nor further investigation.  This makes no sense, and strongly suggests that OCE has acted beyond its authority in this case.

Finally, it should be noted that OCE’s interpretation of Rule 13 could have negative consequences for its future investigations.  It will give attorneys for Members under investigation a handy excuse, and perhaps a legitimate reason, for refusing to cooperate with OCE investigations.  After all, if OCE can make referrals of evidence to the Department of Justice or other law enforcement authorities, their clients may be relinquishing Speech or Debate or other privileges when they provide information to OCE.  Far better to wait until the matter reaches the Ethics Committee, where both formal rules and actual practice make referral much less likely.

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