Lessons from a Byzantine Scandal

Let’s say you are a Member of Congress who is approached by an obscure nonprofit organization about accepting an all-expense-paid trip to Baku, Azerbaijan during an upcoming recess. (Baku is on the western shore of the Caspian Sea, in case you need a map to locate it, which you probably do). The purpose of the trip is to attend a conference called the US-Azerbaijan Convention: Vision for the Future.

A brief glance at the itinerary for this event leaves little doubt it enjoys the official sanction of the Azerbaijan government. You and your colleagues will be meeting with the President of Azerbaijan himself, as well as the Speaker of Parliament, and will receive briefings from government agencies such as Customs and Border Protection, the Ministry of Foreign Affairs, and SOCAR, the state-owned oil company. These discussions will cover US-Azerbaijan relations, regional security challenges posed by Russia and Iran (between which nations Azerbaijan has the misfortune to be sandwiched), and matters relating to the construction of oil pipelines and energy security generally.

You decide, reasonably enough, that this looks like an interesting and educational trip that will help you gain a deeper understanding of these important matters on which you make policy. So you instruct your staff to work with the nonprofit organization, which we will call the “Turquoise Council of Americans and Eurasians” (TCAE), to submit the required forms and information to the House Ethics Committee, which then pre-approves the proposed trip pursuant to House Rule XXV, clause 5(d)(2).

And off you go, along with ten of your House colleagues, 32 staffers, 75 state legislators, and former elected officials such as Bill Richardson, Dick Lugar and Dan Burton. A journalist attending the conference describes it as “among the biggest concentrations of American political star power ever seen in the Caucasus,” which admittedly may be akin to boasting of the best gas station sushi in the state of Oklahoma.

The trip goes fine. You attend the scheduled events, try not to mispronounce too many Azeri names, and maybe even sneak in a little sightseeing in Baku’s Old City. You listen to a lot of speeches, including from former Obama administration officials David Plouffe, Robert Gibbs and Jim Messina. They mostly repeat the same pablum you could have heard in DC, though Gibbs does recount an amusing anecdote about then-Senator Obama haggling with a local rug merchant during a 2005 CODEL to Baku.

But no sooner than you have returned to the US, visions of lamb shish kebob still dancing in your head, the carping starts. At first it is largely directed at Plouffe, Gibbs and Messina, who received “five-figure checks” for their remarks at the Baku conference and are perceived as cashing in on their government service. (Public Citizen’s Craig Holman, the perpetual Dr. Bellows in pursuit of Major Nelson, says the Azeri government is “trying to buy favors with those who are well connected with the U.S. government” and suggests the three were “letting themselves be used as lobbyists.”) There is also criticism of the Baku conference as a whitewash of Azerbaijan’s less than stellar record on human rights and democracy.

The criticism hits closer to home, though, when it appears that your trip may not have complied with the rules regulating congressional travel after all. Although TCAE and other nonprofit organizations purported to be the sole source of funds for the congressional trips, reports emerge (see here and here) suggesting that the money actually came from other sources, particularly SOCAR. These allegations, which come out about the time you are filing your post-travel disclosure, are followed a year later by this Houston Chronicle article, which suggest congressional travelers to the Baku conference should have known that the conference was being funded by SOCAR and other oil companies based on banners and other conference materials that prominently identified these corporate sponsors.

Things go down hill from there. The Office of Congressional Ethics opens an investigation into the matter, asking you to provide documents and other information regarding your trip. The House Ethics Committee also starts looking into the matter and asks OCE to halt its investigation. OCE refuses, leaving you stuck in the middle. Then someone leaks OCE’s “confidential report” and you find your trip to Baku has made the front page of the Washington Post. It is somewhat unclear exactly what findings and recommendations OCE made, as the Post did not publish the report itself, but the Post article makes various insinuations about your ethics and judgment.

So, did you actually do anything wrong?

Like so much that has happened along the silk roads for the past couple millennia, it’s complicated.


The House Ethics Manual has this nifty one page chart purporting to summarize the rules on congressional travel. The chart is helpful to get an idea of the considerations that go into determining the permissibility of congressional travel (the length of the trip, type of sponsor, and involvement of lobbyists), but some caveats are in order. First, the chart doesn’t cover all types of congressional travel. Personal travel paid for by a private source and travel related to campaigning are not on the chart. This doesn’t matter for present purposes, but it illustrates some of the complexity of congressional travel issues.

The chart is also a bit misleading as it fails to indicate clearly that the first three boxes on the vertical axis only relate to privately-sponsored travel. For example, the chart states that a permissible sponsor for a “multiple-day event trip” would be “any sponsor OTHER than a lobbyist, foreign agent, or private entity that retains or employs such an individual.” But this only applies to privately-sponsored travel. Governmental travel, including travel sponsored by foreign governments, is covered by the last two boxes on the vertical axis.

Foreign governments may not sponsor congressional travel except as specifically authorized by Congress under two statutes, the Foreign Gifts and Emoluments Act or the Mutual Education and Cultural Exchange Act. This rule derives from the Foreign Emoluments Clause of the Constitution, art. I, § 9, cl. 8, which prohibits any person holding an Office of Profit or Trust under the United States from receiving foreign gifts without congressional consent. Neither of these statutes would have authorized foreign government sponsorship of the Baku trip. Moreover, we may assume for present purposes that SOCAR, as a state-owned corporation, would qualify as a foreign instrumentality subject to this rule (or would be regarded by the Ethics Committee as close enough that its sponsorship of congressional travel would not be approved).

For private entities such as TCAE, the rules governing sponsorship of congressional travel are set forth in mind-numbing detail in the Ethics Committee’s 27-pages of travel regulations, which were issued in December 2012. It would be unreasonable to think that a busy Member of Congress (such as yourself) or staffer is going to read and assimilate all these provisions. For most potential congressional travelers, the bottom line is that any privately sponsored trip must be pre-approved by the Ethics Committee. In order to obtain this approval, the traveler must fill out a one-page Traveler Form and the sponsor must fill out a three-page Primary Trip Sponsor Form.

The primary responsibility of the congressional traveler is to explain to the Committee how the trip relates to the traveler’s official duties. See Travel Regulations § 401.01. The traveler is also asked by the Committee to state whether she is aware of any registered lobbyist or foreign agents involved in planning or arranging the trip. Neither of these answers appear to have been an issue with respect to the Baku trip.

The questions surrounding that trip instead relate to the truthfulness of representations made by the trip sponsors to the Ethics Committee. TCAE (and other nonprofit groups that sponsored additional congressional travelers) represented on the Primary Trip Sponsor Form that it had “not accepted from any source funds intended directly or indirectly to finance any aspect of the trip.” This, it seems, was not true.

What is your responsibility as a Member of Congress for this misrepresentation? If you knew or were deliberately ignorant of its falsity, you might very well get in trouble. But it is unreasonable to think you are going to personally review and double check the accuracy of statements made by the trip sponsor.

For example, if you arrive at the Baku conference and become aware of the fact that SOCAR and other corporations are sponsoring the conference, it is not obvious that you would see any conflict between this fact and the representations made by TCAE on its sponsorship form, even assuming you were aware of and remembered those representations. And even if you did see a potential conflict, it hardly seems realistic to expect you to interrogate your hosts on their financial relationships.

To be sure, there were reasons to question the Primary Trip Sponsor Forms from the outset. For one thing, there were at least four different nonprofit organizations in addition to TCAE (the Turkic American Federation of Southeast, the Turkic American Alliance, the Turkic American Federation of Midwest, and the Council of Turkic American Associations) sponsoring different congressional travelers to the same conference. Simply looking at the Primary Trip Sponsor Forms these organizations filled out, certain questions present themselves. Who is coordinating the efforts of these groups and is that person or entity providing any funding? What is their relationship to the Azerbaijan government? Where are they getting the money to sponsor so many congressional travelers? Why are there discrepancies in responses to some of the questions on the form (see in particular the answers to Question 15)?

Looking at TCAE in particular, publicly available information would cause one to question its ability to fund multiple congressional travelers to the Baku conference. It was a fairly new organization, having been founded in 2009. Its most recent tax filing at the time of the Baku conference showed that its revenue over a two-year period consisted only of about $140,000 in contributions and grants, and that is net assets at the end of the tax year were less than $2,000. Nothing in TCAE’s “bare-bones” tax filing explains how it would be able to fund the Baku trip out of its own pocket.

If there was a failure to ask sufficient questions or spot red flags, though, the primary responsibility would seem to lie with the Ethics Committee, not with the congressional travelers. The travel regulations require the primary trip sponsor to respond to questions from the Committee during its review of a proposed trip. See § 201.1(b)(3). The regulations permit the traveler to rely in good faith on the Committee’s pre-approval of a trip. See § 507(c). In this case at least the Committee, which had before it all of the sponsorship and travel request forms, would seem to have been in a better position than the individual travelers to spot the red flags and ask the necessary follow-up questions.

Based on the publicly available evidence, therefore, it does not seem that you or your colleagues violated the travel regulations or other ethical rules by traveling to Baku.



The House travel regulations do not ban “lobbying” per se in the course of congressional trips, but they contain provisions intended to minimize the amount of lobbying on such trips. Or perhaps more precisely, they seek to minimize the chances that congressional travel will be inappropriately used to advance a lobbying effort.

Thus, House rules generally restrict the ability of entities that employ registered lobbyists or foreign agents to act as private sponsors of congressional trips. They also bar lobbyists or foreign agents from accompanying congressional travelers on a trip or from involvement in planning or organizing the trip. The idea, I suppose, is that these prohibitions make it less likely that congressional travel will be used as part of a lobbying strategy.

One could argue that the Baku trip violated House rules on lobbying in the sense that SOCAR, assuming it funded the congressional travel, was disqualified from doing so because (among other reasons) it had registered lobbyists and/or foreign agents in the US. However, there were no red flags to suggest lobbyist involvement in funding the trip, nor does it appear that lobbyists either accompanied the congressional travelers or played a role in organizing or planning the trip. There were reports that registered lobbyists/foreign agents attended the Baku conference, but this in itself does not violate House rules.

However, while some Members told the press they were not “lobbied” during the Baku trip (by which they apparently meant they were not encouraged to support or oppose any particular measure likely to come before the House), in a broader sense the Baku conference was clearly part of a lobbying effort on the part of the Azerbaijan government. This “charm offensive,” as one participant described it, may have been designed mostly to build general goodwill among US policymakers, but it cannot be doubted that Azerbaijan has a list of specific objectives it hopes these policymakers will ultimately support.

Some of these may be found at the “key issues” tab of the Azerbaijan American Alliance website. Among those issues are Azerbaijan’s struggle with Armenia over an area known as Nagorno Karabakh and its desire to repeal a provision of US law that essentially takes Armenia’s side in this conflict. The Alliance was founded by the son of Azerbaijan’s transportation minister, and its raison d’etre appears to be to act as the Washington lobbying arm of the Azerbaijan government or a faction thereof. Former congressman Dan Burton (who, you may recall, attended the Baku conference) serves as chairman of the board.

A more unusual lobbying effort, meanwhile, appears to be taking place through TCAE and the other nonprofits that sponsored the congressional trip to Baku. These groups, who you might have thought just ordinary “Turquoise Americans,” turn out to be closely affiliated with one Fethullah Gullen, a Muslim cleric who leads a powerful political movement based in Turkey. Gullen was once allied with President Erdogan of Turkey, but they had a falling out, and now Buzzfeed colorfully (if somewhat inaccurately) calls Gullen “a Turkish guru in exile.”

Anyway, the American Gullenists have been busy cozying up to both federal and state legislators, both by taking them on trips like the one to Azerbaijan and by making significant campaign contributions. (They also have established a string of charter schools, which may or may not be related to their interest in cultivating legislative connections). They have been especially active in encouraging state legislators to pass resolutions supportive of Azerbaijan, particularly in relation to its ongoing feud with Armenia. Armenia has apparently been doing the same thing so the two sides have been effectively fighting a proxy war over Nagorno Karabakh in state capitols across the U.S.

These state legislative efforts have mostly flown under the national radar, but they have raised some eyebrows in the local media (see here and here). The Gullenists have been active in many states, but they seem to have particularly focused on Texas, Oklahoma, Tennessee and New Mexico. Why, I am not sure.

So if you wondered why 75 state legislators, 25 from New Mexico alone, made the trip to Baku, now you know.

Now there may be nothing wrong with sponsoring a congressional trip in the hope that it will make the participating members and staff more sensitive or sympathetic to the host country. (Pro-Israeli groups, among others, do it all the time). So long as the sponsoring organization is qualified and accurately identified, House rules do not prohibit this type of “lobbying” trip. Nor do they require the congressional traveler to understand or be accountable for the true motivations or objectives of the sponsoring organization. You and your colleagues, who may never have heard of the Gullenists, cannot be blamed for whatever they are up to.

One lesson here is that the “anti-lobbying” provisions of the House rules probably do more harm than good. They may discourage some lobbying at the margins, but they also encourage sponsorship by shadowy front organizations like TCAE, which simply serves to conceal the true interests behind the trip.

Personally, I would rather have a registered lobbyist responsible for filling out the travel forms than someone who probably has no clue what the House travel rules require. In the case of the Baku trip, the individual filling out some of the forms may also have had less than a firm grasp on the English language, explaining in one of the answers: “The trip will provide a well understanding and analyzing of Azerbaijan that will help in serving Azerbaijan and Turkic community in U.S. and in having better relations with Azerbaijan.”

A lobbyist is far more likely to understand the travel rules and what the Ethics Committee is looking for; he also would have a stronger incentive not to mislead the Committee or do anything else that might jeopardize future dealings with Congress. So instead of barring lobbyists from any involvement in congressional trips, the House should consider requiring  Primary Trip Sponsor Forms be signed by a registered lobbyist or some other known responsible person.


Gifts and Disclosure

While it appears that you and your fellow travelers should not be faulted for accepting the offer to travel to Baku, it cannot be said that your conduct was entirely blameless. When the Ethics Committee pre-approved the trip, it sent each traveler a brief letter outlining three requirements relating to the trip. Unfortunately, only one Member appears to have read this letter.

First, each traveler was informed of the requirement to file post-travel disclosure forms within 15 days of returning from the trip. The good news is that most Members filed their post-travel disclosures a more or less timely fashion. Only one Member (Representative Gregory Meeks) was seriously late, not filing his disclosure until nearly a year had passed.

The second requirement was that each traveler “report all travel expenses totaling more than $350 from a single source on Schedule VII of your annual Financial Disclosure Statement.” This reporting requirement was clearly triggered by the Baku trip since each traveler received well over the minimum amount in travel expenses from TCAE or one of the other sponsors. Astoundingly, though, only one Member (Representative Jim Bridenstine) made the required disclosure on his annual financial disclosure statement. Equally surprisingly, the Ethics Committee, which carefully reviews all financial disclosure statements, apparently did not catch this omission or raise the issue with the filers.

Finally, the pre-approval letter warned that “[b]ecause the trip may involve meetings with foreign government representatives,” the traveler should be aware that “[a]ny tangible gifts valued in excess of $350 received from a foreign government must, within 60 days of acceptance, be disclosed on a Form for Disclosing Gifts from Foreign Governments and either turned over to the Clerk of the House or, with the written approval of the Committee, retained for official use.” This turned out to be a useful warning because, according to published reports, many if not all of the congressional attendees of the Baku conference were given one or more gifts by their hosts, including Azerbaijani rugs (a “prayer-size” and/or area rug), crystal tea sets, briefcases, silk scarves, turquoise earrings and gold-painted plates.

Again, however, only Bridenstine seems to have read or paid attention to the letter. He disclosed the receipt of one rug of each size, which he had appraised at $2500 and $3500, and ended up donating them to the Clerk’s office. Everybody else apparently kept the gifts without disclosing them. Some Members later said they thought the gifts were of minimal value, with one Member volunteering that the rugs were unattractive (perhaps she thought there is an ugliness exception to the Foreign Gifts and Decorations Act).

To be clear, I doubt anyone accepted a trip to Baku in the hope of scoring free rugs. Probably those who received gifts did think they were of minimal value or just forgot about disclosing them once they returned to the U.S. And I can testify that filling out the annual disclosure form is a giant pain in the ass comparable to filing your taxes. So it’s not exactly a shock Members would make mistakes complying with the myriad of rules, regulations and laws that apply to their activities. But if Member are unable or unwilling to comply even with obligations specifically pointed out to them by the Ethics Committee, how can they expect the rest of us to comply with the hideously complex tax and regulatory requirements they enact?

So anyway, if you happen to be Representative Bridenstine, take a bow. Otherwise you should think about this sordid affair as a good complexity shaming.


The “Ethics Police”

Although not directly related to your conduct, the Baku conference has touched off another skirmish between the Ethics Committee and the Office of Congressional Ethics. This time the dispute centers on section 1(d)(1) of H. Res. 895, which established the OCE. The relevant language is:

Notwithstanding any other provision of this section, upon receipt of a written request from the [Ethics Committee] that the board [of OCE] cease its review of any matter and refer such matter to the committee because of the ongoing investigation of such matter by the committee, [OCE] shall refer such matter to the committee and cease is preliminary or second-phase review, as applicable, of that matter and so notify any individual who is the subject of the review. In any such case, [OCE] shall send a written report to the committee containing a statement that, upon the request of that committee, the matter is referred to it for its consideration but not any findings.

As interpreted by OCE in Rule 12 of its Rules for the Conduct of Investigations, this provision requires it to cease review of a matter only when it receives a written request from the Ethics Committee based on “an ongoing investigation of such matter by an investigatory subcommittee of the Ethics Committee.” According to Paul Singer’s reporting in USA Today, the Ethics Committee asked OCE to cease its investigation of the Baku trip, but OCE declined, apparently on the ground that no investigative subcommittee had been established.

On its face, OCE’s position seems weak. Nothing in H. Res. 895 seems to require the establishment of an investigative subcommittee before the Ethics Committee may ask OCE to cease its review. Nor is it obvious that the resolution invites OCE to look underneath the Ethics Committee’s request at all. The CRS summary of H. Res. 895 notes simply that the resolution “[r]equires the board to refer a matter to the Committee, and cease its own preliminary or second-phase review, upon Committee request.”

The report of the Task Force that proposed H. Res. 895 also cuts against OCE. The Task Force explained:

After receiving notification that the OCE is reviewing a given matter, the [Ethics] Committee may, if it is already investigating that matter, request that the OCE cease its investigation and refer the matter directly to the Committee. The Task Force envisions certain cases where a matter may already be the subject of an undisclosed [Ethics] Committee investigation in which the OCE may wish to avoid interference. In addition, it is possible that the [Ethics] Committee may possess more complete information than the OCE regarding an alleged violation and may be better equipped to handle the matter.

Not only is the Task Force silent on any requirement that an investigatory subcommittee be formed, but it would be unusual if not unheard of for an “undisclosed” investigation to involve the establishment of such a committee. Moreover, while the Task Force emphasizes that there should be a cooperative relationship between the Ethics Committee and OCE, it also makes clear at the end of the day it is OCE’s duty to comply with the Committee’s request, noting that “[t]he board of the OCE must comply” with the Committee’s requests “at any point in the process.” There is no suggestion that OCE should be second-guessing these requests, and any such suggestion would seem to fly in the face of the Task Force’s admonition that the Committee may have information unknown to OCE.

OCE’s Rule 12 obviously cannot override the controlling House rules and resolution. Even if H. Res. 895 were deemed ambiguous, I doubt the House either owes or would give much deference to OCE’s interpretation.

Apart from the legal issue, was it wise for the Ethics Committee to ask OCE to step aside? This is hard to say. On the one hand, it is understandable that the Committee would not want OCE in effect second-guessing its approval of the Baku trip in a way that redounds to the detriment of Members who relied in good faith on that approval. On the other hand, the Committee has a conflict of interest here because a fair investigation may show this scandal to be more about infirmities in the Committee’s own processes than ethical infractions of Members.

At this point the wisdom of the Committee’s request may matter little since OCE has completed its review and reported its findings to the Committee. But there is still a question of whether the Committee will treat OCE’s report and findings as valid (in which case the Committee will ultimately be obligated to publish them). There is also the question of how the Committee and OCE will handle the Rule 12 issue in the future.

Last but not least, there is the matter of who leaked the confidential OCE report to the Washington Post. This was a serious violation of House rules and the most obvious suspects would be the board and staff of OCE (particularly the former).

Who is going to investigate that?


Conclusion: “How Stretched are the Morals and Ethics in Washington?”

This is how the moderator of a recent Sky News Debate introduced the subject of your trip to Baku. The “debate” featured the program’s regular participants, one from the left and one from the right, who agreed that the answer to the moderator’s question was “very” and who mostly competed to see who could denounce you and your colleagues in the strongest terms. The left-winger probably won when he called your trip a “junket” and suggested you brought along your bathing suit, golf clubs and “22-year old secretary” (this guy is stuck in the Wilbur Mills era).

Fortunately, you had a defender in the person of Dan Schwager, former staff director of the House Ethics Committee, who argued that the hoopla surrounding the Baku trip was the result of the public’s “craving for scandal.” He called the trip a “fact-finding mission” and argued that the congressional travelers were trying to comply in good faith with the “complicated” rules governing such trips. The fact that the sponsors may have provided misinformation to the Ethics Committee “shouldn’t be something that is tarring the reputation of these Members and staff.” He even suggested that accepting gifts could have been necessitated by the need to be diplomatic in a foreign country (though it is not clear how this would explain the failure to disclose the gifts or turn them over to the Clerk’s office).

As we have seen, Schwager is basically right that this “scandal” is not primarily about individual wrongdoing. The Baku trip was not a “junket” and the congressional travelers, by all appearances, relied in good faith on the Ethics Committee’s pre-approval. The picture is not quite as rosy with the regard to the gifts, but even there it is unlikely that there was intentional misconduct.

The major issue in this unfortunate affair has to do with the House’s “complicated” rules and whether they are exacerbating the problems they were meant to prevent. There is also a serious question of the vetting the Ethics Committee does of trip sponsors like TCAE. These are institutional problems, not ones of individual misbehavior.

Still, unless these problems are fixed, future congressional travelers will have to be more cautious about relying on the Ethics Committee’s pre-approval. So next time someone approaches you with a free trip to a place you’ve never heard of, you might want to do a little more due diligence before accepting.

And if you end up going back to Baku, buy your own rug. Gibbs knows where you can find a deal.

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