House Ethics Committee and a Breach of Confidentiality

In all the hoopla over the House Ethics Committee’s appointment of an outside counsel and the allegations of impropriety in the Committee’s investigation of Representative Maxine Waters, one serious issue has largely escaped attention. Someone leaked to Politico reporter John Bresnahan “hundreds of pages of confidential Ethics Committee emails, memos and notes” relating to the investigations of Waters and Representative Charlie Rangel. These documents, three of which were posted by Bresnahan, formed the basis of his July 18 expose on the infighting between former Ethics staff director Blake Chisam and two former attorneys on the staff, Morgan Kim and Stacy Sovereign.

The leak was an extremely serious violation of House and Committee rules. Under House Rule XI(3)(d), every member and staffer of the Ethics Committee must execute the following oath or affirmation before obtaining access to confidential information:

“I do solemnly swear (or affirm) that I will not disclose, to any person or entity outside the Committee on Ethics, any information received in the course of my service with the committee, except as authorized by the committee or in accordance with its rules.”

The Committee rules clearly prohibit disclosure to persons outside the Committee of information relating to an investigation or any investigative or adjudicatory proceedings and ban making any confidential information public absent “an affirmative vote of a majority of members of the Committee.” See Ethics Committee Rule 7 (b), (c) & (d).

The Committee takes these confidentiality requirements very seriously. Not long ago it fired a staffer who inadvertently put an internal Committee document on a publicly accessible computer network.

Moreover, both House and Committee rules state that “[b]reaches of confidentiality shall be investigated by the Committee and appropriate action shall be taken” (emphasis added). An investigation of this breach, therefore, would seem to be mandatory, not optional.

An interesting question may arise if the source of the leak turns out to be someone who no longer works for the Ethics Committee or the House of Representatives. What powers, if any, does the Committee have to punish the breach of confidentiality in that case? If the answer is none, the Committee may need to consider whether it has adequate policies in place to ensure that departing members or staff do not take with them and subsequently release highly confidential documents or information.

It is unclear whether this leaking is within the scope of the responsibility given to the outside counsel. But someone needs to investigate it.