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Unclear and Not All that Convincing

The long-running ethics investigation of Representative Maxine Waters neared an end today with a public hearing before the “Waters Committee” (a special version of the Ethics Committee set up specifically for the Waters matter). Chairman Goodlatte announced that the committee had received the report and recommendations of Outside Counsel Billy Martin, who advised that there was insufficient evidence to justify establishing an Investigative Subcommittee to proceed further with respect to the matter, but that Martin has made “perfectly clear” that “he believes that certain specific actions of Mikael Moore, the Chief of Staff to Representative Waters are in fact violations of the standards and rules of the House regarding conflict of interest.”

If Martin believes that Moore violated the standards and rules of the House, why didn’t he recommend an Investigative Subcommittee? Goodlatte explained: “To be clear, Outside Counsel does not believe the evidence on the record, without making any credibility determinations, would prove Mr. Moore’s knowledge of the conflict at that time by clear and convincing standards. This is principally because Mr. Moore has explicitly denied such knowledge. However, Mr. Martin has been clear about his concerns regarding Mr. Moore’s credibility throughout this process, and has recommended that the Committee make its own credibility determinations to decide if any action is appropriate.”

This isn’t all that clear to me, but what I gathered from sitting through the hearing is this: during the course of the investigation, Moore answered certain questions in a way that Martin does not find credible. Martin, however, does not believe that he can prove that these answers are false by “clear and convincing evidence,” which is the evidentiary standard applicable to imposing discipline by the House. Accordingly, Martin suggests (but does not recommend) that the committee consider issuing a letter of reproval, which is a rebuke from the committee itself that need not meet this high evidentiary standard.

This strikes me as an unusual approach. My impression is that letters of reproval are used for conduct the committee considers inappropriate, but not serious enough to warrant action by the House. They may on some occasions be motivated by the committee’s belief that there was more serious misconduct it cannot prove, but this is rather different from charging the misconduct it cannot prove in the letter of reproval itself. (Imagine a letter of reproval that says “Representative X, the committee believes that you took massive bribes from a foreign power, but we can’t prove it by clear and convincing evidence, so we are issuing this letter instead.”)

On the other hand, it seems clear (if you will pardon the expression) that Moore has brought these problems to a large extent on himself. The purpose of the hearing, which was held at Moore’s request, was to give him an opportunity to convince the committee not to issue the letter of reproval. But instead of simply providing factual testimony supporting, clarifying or amending his prior statements that are in question, Moore essentially acted as his own lawyer, making legal arguments and attacking inconsistencies in the committee’s legal and factual positions. Not surprisingly, members of the committee (other than the genial and entertaining Representative Latourette) did not react well to this approach.

Moore had a lawyer with him, but he said almost nothing. One wonders why the lawyer didn’t handle the legal argument, or at least explain to Moore the difference between being a witness and an advocate. Perhaps having counsel representing Moore and Waters jointly was not such a good idea, as the committee has often noted before.

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