A Brief Comment on Weiner and the Media

I have been working on a post regarding congressional oversight of intelligence, but it is my solemn duty to drop everything and comment on the ethical troubles of a certain congressman, who unfortunately will not remain nameless.  As reported by the Washington Post: “In an extraordinary reversal at an extraordinary news conference, Rep. Anthony Weiner of New York admitted Monday afternoon that he had repeatedly lied to his constituents and the country in denying that he had sent a lewd picture of himself to a college-age woman on Twitter.”

The Minority Leader has called for an ethics investigation, focusing in particular on whether any government resources were used in connection with the inappropriate tweeting. For his part, the congressman denies any violation of House rules, stressing that he had used a personal blackberry to send the tweets in question. He contends that his misconduct was purely personal and therefore not within the cognizance of the ethics rules.

To the extent that the congressman has an ethics problem, however, it seems more likely to revolve around his interactions with the media than around the underlying conduct. In the first place, it would be difficult to argue the congressman’s press conferences or media interviews were purely personal in nature. As I have noted before, the courts have found that congressional interviews with the press fall within the scope of official activities, even when the subject matter is personal in nature. See Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006) (“A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.”) In addition, it seems highly likely that the congressman used staffers and other government resources in arranging and preparing for the various interviews that he gave regarding this subject.

I am not aware of any precedent on whether lying to the media constitutes a violation of House Rules. One can imagine that the Ethics Committee would be reluctant to establish such a precedent. However, in this case it may be fairly observed that the congressman did a good deal more than merely respond untruthfully to press inquiries.  He not only put out a false cover story, in which he claimed that his account had been “hacked” (likely a federal crime), but he seems to have actively sought opportunities to propagate this story, to issue false denials, and to attack the motives and integrity of reporters who questioned his statements. See, for example, the congressman’s interactions with CNN and ABC.

Any ethics case against the congressman would almost certainly be premised on Clause I of House Rule XXIII, which provides that a “Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.” Applying this vague standard is notoriously difficult. In this case, though, it is not hard to see how the Ethics Committee might conclude that the congressman’s media campaign failed to “reflect creditably on the House.”