Ethical Dilemma

Friday’s letter from the House Ethics Committee indicates that Billy Martin was asked “to review allegations that this Committee violated due process rights or rules attaching to Representative Waters.” Martin was also asked “to address whether recusal of any Members of the Committee should be considered and when would be the most appropriate time for his recommendations regarding recusal.” Martin apparently advised initially that recusal decisions should wait until he completed his due process review.

For reasons I suggested in August, I think this was the wrong approach. Whatever “due process violations” may have occurred, they should not prevent the Committee from moving forward with the Waters case so long as appropriate steps are taken to remove the taint of any past violations. Most obviously:

As a practical matter, it seems almost inevitable that Martin will recommend that some members of the Committee be recused from future involvement in the Waters case. Whether or not Martin agrees with or can substantiate Chisam’s allegations, recusal would help to ensure public confidence in the process and remove any potential taint from the prior proceedings. Rather than further delaying the Waters proceeding while he tries to untangle the legal and factual aspects of the alleged ex parte communications, it would make more sense for Martin to figure out who ought to be recused in order for the matter to move forward.

Because Martin’s due process review has been stymied by a “necessary witness” taking the Fifth, he has decided that now would be a good time to make recusal decisions after all. Accordingly, six current Committee members (all five Republicans plus Ranking Member Sanchez) have decided to recuse themselves from the Waters matter, and substitutes have been appointed from outside of the Committee. These six substitutes, plus the four other Democrats who are currently on the Committee (but did not serve on the Committee in the last Congress), will form a kind of substitute committee for purposes of the Waters case.

Does this mean that the Committee is going to take my advice and move forward with the Waters matter? Maybe . . . but I wouldn’t count on it. If they try to advance the Waters case without resolving the due process issues, Stan Brand (Waters’s counsel) will raise holy hell. And if the Committee tries to argue now that the due process issues do not need to be resolved, it will be a little hard to explain why more than six months and hundreds of thousands of tax dollars were spent trying to resolve them.

The other option is for the Committee to try to force the “necessary witness” to testify. It could do this by obtaining a grant of immunity under 18 U.S.C. § 6005. But there is a problem with this too. A grant of immunity requires a two-thirds vote of the full Committee. Who would be counted for purposes of the vote? Do the recused members count?

Even worse, there would seem to be a serious question as to the legality of the substitute appointments. The appointments were made under House Rule XI, clause 3(b)(5), and Committee Rule 9(e), which state that a member of the Ethics Committee may disqualify himself or herself “upon the submission in writing and under oath of an affidavit of disqualification stating that the member cannot render an impartial and unbiased decision in the case in which the member seeks to be disqualified.” One assumes that no such affidavits were submitted here because the Committee’s letter states that the recused members “believe that they each can render an impartial and unbiased decision in any proceeding related to this matter.”

Maybe there is another way around the problem, but I think the substitute committee will eventually need either (1) agreement from Waters and/or the necessary witness not to object to the composition of the committee or (2) a resolution of the House approving the appointment of the substitute committee. Otherwise any way forward is going to face even more procedural obstacles.

So what happens now? I am not sure, but the path of least resistance may be for the substitute committee to use other tools to pressure the necessary witness to cooperate. If the witness is whom I think, there are such tools available. But its going to be difficult road however they proceed.

Its another fine mess you’ve gotten us into, Stanley.