Can Representative Waters Take the Ethics Committee to Court?

According to this Politico story, “Rep. Maxine Waters (D-Calif.) is threatening to take the House Ethics Committee to federal court if the secretive panel charges her with any violations of House rules.”

This statement appears to reflect a misunderstanding of a letter sent by Stan Brand, Waters’s attorney, to the chairman and ranking member of the Ethics Committee on July 19. Although Brand asserts that “the Committee’s actions in this matter have concluded and that any further action, save from formal acknowledgement of dismissal, is legally precluded and indefensible,” he knows full well that no federal court will grant relief against the Ethics Committee with regard to its ongoing disciplinary proceedings. Thus, his letter does not threaten to “take the Committee to court” in order to have those proceedings enjoined or declared invalid.

Instead, Brand threatens a federal court action with respect to one particular aspect of his grievances against the Committee, namely the alleged “illegal leaking of confidential Committee documents, transcripts, emails and other information to the media to create a misimpression regarding both the strength of the case against [Waters] and the Committee’s ability to proceed with this case.” Brand contends that this conduct (a) is unprotected by Speech or Debate and (b) implicates Waters’s constitutional and statutory rights.

It is certainly true that, under existing case law, there is no necessary constitutional barrier to a federal court action alleging that a member or staffer of the Ethics Committee has leaked information to the media. See Boehner v. McDermott, 483 F.3d 573 (D.C. Cir.), cert. denied, 128 S.Ct. 712 (2007) (upholding civil judgment against member of Congress who leaked an illegally recorded tape recording which had been given to him in his capacity as ranking member of the Ethics Committee). It is, however, not obvious what constitutional or statutory right might give rise to a cause of action for the leaking Brand alleges. Brand’s letter does not say.

Assuming that there is a viable cause of action (and assuming that it is not barred, for example, by the Federal Tort Claims Act) based on the alleged leaking, it would seem most likely that it would lie against the individuals responsible, not against the Committee itself. Any attempt to sue the Committee itself over the alleged leaking would face serious constitutional hurdles, such as Speech or Debate, sovereign immunity and separation of powers.

In short, the chances of Representative Waters obtaining any relief against the Ethics Committee in federal court are so remote that it seems highly unlikely that she would bring such an action. And there is no chance that any court would review or interfere with the committee’s investigatory or disciplinary decisions.