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An Unwarranted Attack on the House and the Ethics Committee

In an oddly speaking complaint, Representative Charlie Rangel, represented by New York attorney Jay Goldberg, has filed suit in federal court against the Speaker, the Clerk and several former members and staff of the House Ethics Committee, including Zoe Lofgren, the former Democratic chair, and Jo Bonner, the former Republican ranking member. Cutting through the ample legal verbiage, Rangel’s complaint comes down to this: the court should set aside his December 2, 2010 censure by the House of Representatives because that discipline stemmed from a recommendation by the Ethics Committee that was tainted by “numerous flagrant, knowing and intentional violations of Plaintiff’s Due Process rights and his other fundamental constitutional rights.”

If a court could consider these claims, Rangel’s chances of prevailing on them would be extremely remote. They appear to be based entirely on internal memoranda written by Blake Chisam, then the staff director and chief counsel of the Ethics Committee, about alleged misconduct of two subordinate lawyers, Morgan Kim and Stacy Sovereign, who worked on both the Maxine Waters and Rangel cases. Rangel’s complaint attaches these memoranda (which we have discussed before) and describes them as “essential reading.” Complaint at ¶ 38.

The Ethics Committee previously retained Outside Counsel Billy Martin to investigate these precise allegations in the context of the Waters case. Martin conducted an extensive investigation, at substantial taxpayer expense, and reported to the Committee in September 2012 that there was no due process violation in the Waters matter. Although the report does not analyze the allegations with respect to the Rangel case, its reasoning strongly suggests the same result would obtain there.

Following the issuance of the Outside Counsel report, the Committee wrote to Rangel, rejecting his request to re-open his case. The letter begins by observing “[w]e have received and considered the numerous communications from your counsel, Mr. Jay Goldberg” (emphasis added).  It then states “it is the unanimous opinion of the Committee the there is no legal or factual basis supporting a conclusion that you have been deprived of any constitutional rights in your proceedings.” It emphasizes that this opinion was based on the analysis of its current non-partisan staff (which was not involved in the original Rangel matter) and was consistent with the analysis of Outside Counsel in the Waters case. It concludes with the suggestion that Rangel and his attorney not make “any further public comments” that are “misleading” or “inconsistent with the facts or law in this matter.” The Committee’s irritation with Rangel and Goldberg is barely disguised.

A review of Outside Counsel’s report indicates why the Committee summarily dismissed Rangel’s request. The report points out that it is not clear what due process rights, if any, members enjoy in the context of disciplinary proceedings. Outside Counsel Rep. at 25-30. It is arguable that reputational injury inflicted by a House censure is not by itself sufficient to trigger due process protections. Id. at 29-30. But even assuming (as the report does) constitutional protections apply, “the Constitution does not impose rigid technical requirements in congressional disciplinary proceedings, and “the Committee and the House have broad discretion to determine the appropriate procedures subject only to minimal constitutional constraints.” Id. at 30-31.

The application of this principle may be illustrated with regard to the major “constitutional violation” alleged by Rangel, namely that Kim and Sovereign engaged in improper ex parte communications with the Republican members of the Ethics Committee. Some elements of this claim, such as the infamous “notebook incident,” were found by Outside Counsel to be factually unsubstantiated. More generally, Outside Counsel found “no prohibition on ex parte contact between Committee Members and staff” under committee rules, and it rejected the argument that such a prohibition was constitutionally required. Outside Counsel Rep. at 51-52. Indeed, it found that a ban on ex parte communications between members and staff would be unworkable in the context of the Ethics Committee, where members must rely on the committee staff to obtain information regarding the Committee’s activities. Id. at 60.

Outside Counsel’s review did indicate a pattern in which Kim and Sovereign communicated primarily with Republican members of the Committee, while Chisam communicated primarily with the Democratic chair. Id. at 59. It found this pattern resulted from mutual suspicions that developed among members and staff that the other side was acting in a partisan fashion. Id. at 59-60.

Interestingly, Outside Counsel considered the most apt standard for evaluating the conduct of the committee staff in question, all of whom were lawyers, to be that provided by the D.C. Bar Rules of Professional Conduct. Id. at 53. According to Outside Counsel’s interpretation of D.C. Rule 1.4(b), “if advice or assistance was intentionally provided by counsel on a partisan or selective basis, then the lawyer may not have complied with his or her ethical duty to communicate with the client.” Id. However, Outside Counsel found that it was “questionable” whether any of the communications it found “[rose] to the level of an ethics violation” under the D.C. Rules because “the staff members seemed to believe they were acting to protect the Committee from the misconduct of other Members.” Id. at 59. In any event, there was no violation of constitutional dimension. Id. at 60.

Rangel’s complaint alleges that the Outside Counsel report “can have no bearing on the issues involved in the matter at bar” because Rangel’s case was before an Adjudicatory Subcommittee, rather than an Investigatory Subcommittee. Complaint at ¶¶ 60-61. But Outside Counsel found that the only prohibition on ex parte communications related to the so-called “Bifurcation Rule,” which bars staff from disclosing certain information at the Investigatory Subcommittee stage. Outside Counsel Rep. at 51-52. Rangel does not allege that this rule was violated in his case, and no such violation would have been possible once it proceeded to the Adjudicatory Subcommittee stage. In short, the Outside Counsel report forecloses any inference from the Chisam memoranda that a committee rule on ex parte communications was violated, much less that any due process violation took place.

Even assuming, for argument’s sake, there was staff misconduct that rose to the level of a constitutional violation, it is difficult to see how Rangel would be entitled to relief. The charges that the Committee adopted against Rangel were based on facts that were largely, if not entirely, uncontroverted. The real question in Rangel’s case was not the facts, or even whether those facts established a violation of House rules, but what punishment was appropriate. That decision was made first by the members of the Committee, not staff, and ultimately by the House itself, which adopted a resolution of censure by a vote of 333-79. Any connection between the alleged staff misconduct and the decision by an overwhelming majority of the House as to the appropriate punishment for Rangel’s actions is tenuous at best.

The lack of factual dispute regarding Rangel’s conduct is underscored by the complaint itself, which claims that “Plaintiff is entitled to vacate any finding of wrongdoing, despite the argument that there is clear and convincing evidence of wrongdoing.” Complaint at ¶ 72. In case the import of this statement were not clear, it goes on to say that “it would be improper to lay before the court the quantum of evidence justifying censure.” Id. at ¶ 73. If one thinks about it (which perhaps Goldberg did not), these are rather astounding contentions. Essentially the complaint is saying that not only should a federal district judge serve as the court of appeals for the Ethics Committee and the House of Representatives, but that it should exercise a more demanding standard of review than would an ordinary appellate court, which would not reverse a lower court for harmless constitutional error.

All of this is academic, however, because a federal court clearly has no power to consider or remedy Rangel’s claims. No court has ever attempted to review the disciplinary proceedings of the House or Senate, and it is strongly implied in Powell v. McCormack, 395 U.S. 486 (1969), that the political question doctrine would bar such an action. Beyond this, the court simply lacks the authority to grant Rangel any of the relief he seeks. First, Rangel seeks a declaratory judgment that his constitutional rights were violated and that “the Chair of the Committee and Ranking Member falsely and deceptively mislead (sic) the House” when they claimed Rangel’s procedural and constitutional rights had been respected. Complaint ¶ 100. Second, he seeks a mandatory permanent injunction ordering the defendants “to take all necessary steps to vacate, strike and remove the recording of censure” from House and committee records. Id. at ¶ 103. Finally, he seeks a writ of mandamus ordering the Speaker and Clerk in particular “to cause to be removed from The Journal of the House’s Proceedings, any reference to the fact that Plaintiff had been censured, and to remove any other records of the House reflecting that Plaintiff had been censured.” Id. at ¶ 108.

The fact that similar relief has never been sought, much less granted, should be a tip-off that it is well beyond the power of a federal court. (No doubt Andrew Jackson, for example, would have loved to have a judicial remedy for the Senate’s 1834 censure of him). Both the Speech or Debate Clause and basic separation of powers principles preclude a court from ordering Congress, through declaratory judgment, injunction or similar relief, to rescind or expunge a legislative act that it has taken. As we discussed in connection with the Common Cause case (see also here), Powell is not to the contrary because it involved a claim for failure to pay back salary, rather than a legislative or discretionary act.

In summary, Mr. Goldberg, who is an experienced and accomplished lawyer if his website is to be believed, has advised his client to take the extraordinary and unprecedented step of challenging in court the House’s exercise of its express constitutional authority to “punish its Members for disorderly Behaviour” based solely on allegations made in Chisam’s intemperate memoranda, allegations which (1) have been the subject of an exhaustive investigation by an independent outside counsel; (2) have been rejected not only by the outside counsel but by the current and well-respected staff of the Ethics Committee, the unanimous vote of its current members, and the unanimous vote of the special committee assigned to review the Waters matter; and (3) are not even alleged to have any actual bearing on Rangel’s responsibility for the wrongdoing with which he was charged. If this were not bad enough, the complaint Goldberg prepared attacks the institutional independence of the House of Representatives, accuses its members of falsehood and deception, and seeks relief which is clearly beyond the authority of the court.

The motion to dismiss the complaint is due on July 12. The question is not whether Judge Bates will grant the motion (he will), but whether the House will seek sanctions against Rangel (probably not) or Goldberg (maybe) for filing the complaint in the first place.

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