The Parliamentary Commissioner for Standards

       As it takes up the question of how to structure an independent ethics enforcement office, the House of Representatives would do well to consider the experience of the British Parliament.  In 1995, the House of Commons established the Parliamentary Commissioner for Standards, an independent official appointed by Parliament to handle ethics matters.  Josh Chafetz has argued in a recent article that the Parliamentary Commissioner represents a promising model for congressional ethics reform.    

            The Parliamentary Commissioner’s principal duties are: (1) to maintain the “register of interests” that identifies certain significant financial interests (eg. paid employment, directorships, shareholdings, gifts, hospitality, land and property) of Members of Parliament and others which could potentially influence their parliamentary activities; (2) to provide confidential advice to MPs and others regarding the registration requirement; (3) to advise the Committee on Standards and Privileges (the British counterpart of the House Ethics Committee) on interpretation of the code of conduct; (4) to monitor the operation of the code of conduct and the register and to make any needed recommendations for improvement; and (5) to receive and, if appropriate, to investigate complaints from MPs or members of the public regarding failure to register interests, violations of the code of conduct or other inappropriate activity by MPs in their public life. 

            The last function is the most important.  The Commissioner receives complaints filed by members of the public, but does not accept anonymous complaints or unsubstantiated allegations.  If the Commissioner decides that the complaint lacks merit, he has the discretion to reject it without taking further action.  (The Commissioner has also established procedures for dealing with frivolous or vexatious complaints).  

If, on the other hand, the Commissioner is satisfied that the allegations have sufficient substance to justify a preliminary inquiry, he will ask the MP in question to respond.  Following receipt of this response, the Commissioner may dismiss the complaint, reach a settlement with the MP (if the Commissioner finds that the infraction was minor or unintentional), or proceed to conduct a full investigation.  If a full investigation is warranted, the Commissioner will ultimately report to the Committee on Standards and Privileges (the equivalent of the House Ethics Committee) with his findings and recommendations.  The Committee may then conduct further inquiry, and will ultimately publish its own report along with the report received from the Commissioner.   

As suggested by Josh Chafetz, the Parliamentary Commissioner model appears to be working successfully in Britain.  I would add that I was favorably impressed with the operations of the Parliamentary Commissioner’s office when, on a recent trip to London, I had the pleasure of meeting with Sir Philip Mawer, who served as Parliamentary Commissioner until the end of 2007, and his staff.  Whether this is the right model for the House of Representatives is a matter for debate, but in future posts I will discuss some significant differences between the House’s proposed Office of Congressional Ethics and the Parliamentary Commissioner.

More on Coconut Road

           Via TPM Muckraker, Senator Tom Coburn has demanded a joint House-Senate investigation of the circumstances that led to the infamous Coconut Road earmark language, which was inserted into the 2005 Transportation Bill (allegedly on instructions of staff for then-House Transportation Committee Chairman Don Young) after final passage of the bill.  Taxpayers for Common Sense had requested that the House Ethics Committee investigate the matter, but that request has predictably gone nowhere.

            As I noted in a previous post, because this matter presents, at least at the outset, primarily a question of possible violations of parliamentary rules, practice or precedent, the House Ethics Committee is unlikely to take it up.  It would be more appropriately investigated by a special panel or task force like that which was established to review the “stolen vote” on the 2008 Agriculture Appropriations Bill.  In fact, I suggested that the House could broaden the mandate of the “stolen vote” vote panel to encompass this matter.      

            Senator Coburn’s proposal that a special House-Senate panel be created also makes a certain amount of sense.   After all, because the House Enrolling Clerk evidently inserted language into the enrolled bill that the Senate had not agreed to, the Senate’s interests are directly implicated in a way that they would not be by more typical malfeasance or impropriety internal to the House.    

            Nonetheless, establishing a joint committee for this purpose would raise constitutional issues since Article I makes each House solely responsible for determining its own rules and disciplining its own members.  Perhaps more importantly, it seems unlikely that either the House or Senate leadership will wish to establish a precedent for involvement of one body in the internal governance of the other.   

            At the end of the day, the best Senator Coburn can hope to do is to get a commitment from the House that it will investigate the matter and (perhaps) provide the Senate with a report of its conclusions.  This would be a substantial accomplishment, however, and we here at Point of Order wish him the best.

When the Justice Department Takes the Fifth

From Chris Wallace’s interview of Representative Pete Hoekstra (ranking member of the House intelligence committee, also known as “HPSCI”) yesterday:

WALLACE: On Friday, the Justice Department moved to block congressional investigations of the destruction of these CIA tapes, saying that it would jeopardize its own probe.

Congressman Hoekstra, does that mean your committee is going to stand down?

HOEKSTRA: No, I don’t think so. I think what we’re going to do is we want to hold the community accountable for what’s happened with these tapes. I think we will issue subpoenas.

And once these witness appear in front of the committee, then I think we’ll have to make the decision as to whether we’re going to provide them with immunity or not. But our investigation should move forward.

            At first blush, Hoekstra’s reference to the granting of immunity seems like a non sequitur.  After all, he was asked whether HPSCI would continue its investigation of the tape destruction despite DOJ’s apparent opposition.  What does that have to do with whether HPSCI might take the extraordinary step of granting immunity to witnesses, assuming that one or more of these witnesses invoke the Fifth Amendment privilege against self-incrimination? 

The reference to immunity is understandable, however, in the context of Hoekstra’s prior experience in conducting investigations in parallel with ongoing DOJ investigations. In these situations witnesses who are cooperating with DOJ, even those who have already reached a plea agreement or immunity deal, will nonetheless assert a Fifth Amendment privilege vis a vis Congress. This practice stands the purposes of the Fifth Amendment on its head, since the privilege protects individuals from testifying in criminal trials, not in congressional hearings. However, by condoning or encouraging this practice, DOJ can frustrate congressional investigations that it views as nuisances.

An example of how this works is Duke Cunningham, the former congressman now serving time in federal prison for accepting millions of dollars in bribes. Cunningham’s plea agreement required him to cooperate with federal and state law enforcement agents and attorneys, and protected him against potential criminal prosecution for truthful statements made in the course of that cooperation. However, it did not (at least expressly) require cooperation with Congress. The plea agreement also gave DOJ a great deal of leverage over Cunningham because it promised him the possibility of a reduced sentence if his cooperation was satisfactory to the Justice Department.

As a consequence, when HPSCI wanted to interview Cunningham as part of its inquiry (which I led) into his activities as a member of the committee, his lawyer, Lee Blalack, refused to allow Cunningham to cooperate absent permission from the Justice Department. As Blalack more or less acknowledged, his concern was not really that Cunningham would be prosecuted for statements made to HPSCI—instead, he believed that DOJ might retaliate against Cunningham for cooperating with the committee by refusing to seek a reduction in sentence. In effect, this gave DOJ a veto right over Cunningham’s appearance before HPSCI. Thus, when DOJ not only refused to give permission for Cunningham to cooperate but actually asked HPSCI to stop trying to interview him, Blalack informed the committee that Cunningham would not cooperate voluntarily and, if subpoenaed, would assert the Fifth in response to any questions.

What do experiences such as this mean for HPSCI’s investigation into the tape destruction? The chances that HPSCI will actually grant immunity to any witnesses are slim at best. Nor should it do so, at least with respect to witnesses who are cooperating with federal law enforcement. Instead, HPSCI should insist that any agreements, explicit or otherwise, that DOJ reaches with witnesses must also provide for congressional access to these witnesses on the same terms. The Fifth Amendment is supposed to be a shield against compelled self-incrimination in criminal cases, not a sword for the executive branch to use against congressional inquiries.

Should the House and Senate Intelligence Committees Have Heard General Hayden in Public Session?

        

Over at Balkinization, Marty Lederman is upset that the House and Senate intelligence committees conducted closed-door sessions to hear General Hayden’s account of how tapes of CIA interrogations were destroyed.   He asks: 

Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn’t the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?” 

            I made several comments in response to Professor Lederman (these can be read in their entirety at Balkinization) along the following lines: (1) the House and Senate rules relating to public hearings are simply inapplicable to the Hayden sessions because these were briefings, not hearings; (2) the rules do not require any formal vote to close a briefing and, in fact, the House intelligence committee rules provide that all briefings are to be closed; (3) nothing in the House or Senate rules require committees to gather information by way of hearings rather than briefings or other methods; (4) even if these had been hearings, it is almost certain that the committees would have (properly) decided to close them because it would likely be impossible to have a robust discussion of this subject without getting into classified information; and (5) the responsible way for the committees to proceed is to first get General Hayden’s information in a closed session, as they have done, and then make the decision as to whether there is segregable non-classified information that can be heard in an open hearing or, alternatively, to vote to release any information (classified or non-classified) that they believe is in the public interest to disclose. 

            While acknowledging that the rules I cited allowed at least the House intelligence committee to proceed in the manner that it did, Lederman argues that the committees should have conducted hearings, rather than briefings, in this matter.  He also suggests that if the committees had held hearings, they could not have been closed because the predicate for closing the hearings “likely is not present.” 

            This is simply wrong.  The committees have both the authority and the obligation to close hearings whenever classified information will be discussed.   The House intelligence committee rules, for example, provide that hearings shall be closed if the committee determines that disclosure of matters to be discussed may “endanger national security” or violate “any law” or House rule.  The Senate rules similarly provide for closing hearings to avoid disclosure of matters “necessary to be kept secret in the interests of national defense” or which would violate “provisions of law or Government regulations.”  Discussion of classified matters certainly falls under these provisions (as I think Lederman would concede). 

            Moreover, as I pointed out, the intelligence committees face significant legal and practical constraints with regard to classification matters.  The executive branch makes classification decisions and the committees largely have to rely on the intelligence agencies to tell them what is and is not classified.  So unless General Hayden and the administration agreed that the matters in question could be discussed in open session (which they surely do not), the committees would have little choice but to proceed in closed session. 

            Finally, I noted that there could be an argument that a full committee briefing in the Senate would be considered a “meeting” for purposes of the rules (and thus require a record vote in order to close).  Although I was reasonably sure that it would not be, I checked with a very well informed source in the Senate, who confirmed my instinct that a committee briefing is not a “meeting” for purposes of the Senate rules.  Thus, the Senate intelligence committee was not required to vote to close the Hayden briefing.  

Office of Congressional Ethics Should Not Need Subpoena Power

The second criticism of the (nearly) proposed Office of Congressional Ethics is that it will lack the power to subpoena witnesses and documents.  This criticism, it seems to me, is misplaced.  As a practical matter, the OCE should have adequate power to conduct preliminary investigations of ethical violations without compulsory process. 

            Presumably much of the information that OCE will need to review in any preliminary investigation will be in the direct control of the Member of Congress who is suspected of wrongdoing.  OCE should be able to obtain this information, in most cases, simply by request to the Member.  If the Member refuses, OCE could draw negative inferences against the Member and report the refusal to the House Ethics Committee.  This prospect (as well as the potential for adverse publicity if the refusal becomes public) will likely be sufficient to induce most Members to cooperate.

             Another category of information will be in the hands of persons closely associated with the Member, such as former staffers, political allies and contributors, and lobbyists who deal with the Member frequently.  Again, however, the OCE should be able to use its leverage with the Member to obtain the needed information in most cases.   

            Of course, there will be instances in which the OCE will be unable to obtain information because of the absence of subpoena power.  In these situations OCE will have to decide whether the information in question is absolutely critical to its ability to conduct an appropriate preliminary investigation.  If so, OCE will be able to request that the House Ethics Committee use its subpoena power to compel the production of the information in question.  Requiring OCE to take this step should not be overly burdensome.  On the other hand, requiring OCE to justify its requests for compulsory process will substantially reduce the risk of its becoming an out of control “independent counsel” type of entity.   So long as OCE is able to maintain credibility as a serious and impartial ethics watchdog, it should be to get the information it needs without subpoena power.

The Office of Congressional Ethics

Details are emerging regarding the long-awaited proposal of the House Ethics Reform Task Force, which was charged with making recommendations to the House regarding the establishment of an independent ethics office.  The proposal (which evidently has not been approved by the Republican members) will recommend the establishment of an “Office of Congressional Ethics,” which would conduct preliminary reviews of ethical violations and report its findings to the House Ethics Committee.  The proposal is drawing criticism on two grounds: (1) the OCE would not hear complaints from outside groups, but would only self-initiate investigations and (2) the OCE would not have the power to subpoena witnesses or compel the production of documents.   Today I will discuss the first criticism. 

            The reasons for prohibiting the filing of outside complaints are somewhat hard to fathom.  As a practical matter, the OCE will have to get information about potential violations from somewhere, and presumably it will not refuse to consider information brought to its attention by outside parties.  Indeed, Common Cause is supporting the proposal on the theory that it will be able to approach OCE officials informally with complaints.   

            So what is the difference between an informal complaint process and a formal one?  Perhaps there is a feeling that allowing formal complaints would require the OCE to provide some sort of formal response (ie, accept the complaint or dismiss it) and would generate an expectation that OCE would take action on those complaints that were not rejected.  However, the OCE could be permitted to disregard complaints that, on their face, failed to allege a cognizable violation of the rules and/or lacked a substantial evidentiary basis. 

            A formal system, moreover, has some advantages over an informal one.  The complainant can be required to satisfy standards of pleading, such as a requirement that the complaint allege facts sufficient to establish a violation and provide some evidentiary substantiation for those allegations.   A formal complaint would enable the OCE to focus on whether the alleged facts, if proved, would violate an ethical rule and permit it to narrow the issues before commencing a preliminary investigation.   

To further ensure that complaints are reliable, the privilege of filing could be limited to members of an “ethics bar” that OCE would establish.  Complainants and counsel who file unsubstantiated allegations or otherwise fail to meet standards set by OCE could be suspended or disqualified from future filings.   

On the other hand, if the OCE is not permitted to consider outside complaints, it is difficult to see how it can achieve the goal of strengthening public confidence in the ethics process.  Critics will justifiably note that this sends a message will discourage witnesses from coming forward with information that might be damaging to a Member of Congress.  If OCE only hears complaints from other Members of Congress, why should an ordinary witness, whether a congressional staffer, an executive official or a private citizen, feel that he or she will be taken seriously by OCE?  This is the same fundamental problem that has plagued the House Ethics Committee for the past decade, and merely outsourcing the ethics function will not make the problem go away. 

In short, the absence of a procedure for filing outside complaints would be a serious weakness in any proposal to establish an OCE.  Unless OCE can consider such complaints or develop an alternative mechanism for bringing information forward from ordinary witnesses, it may be perceived as little more than a sham for continuing a discredited ethics system.

DOJ Politicization Program

           Today I attended a DC Bar program entitled “Politics Inside the Department of Justice: Did the Bush Administration Cross the Line?”  The panel consisted of Bud Cummins, (former U.S. Attorney for the Eastern District of Arkansas, one of eight US attorneys who were fired), Joseph Rich (formerly of the DOJ Civil Rights Div) and Lee Casey (Baker Hostetler partner who formerly served in the Office of Legal Counsel and Office of Legal Policy in the Reagan Administration).  Charlie Savage, Pulitzer Prize-winning reporter for the Boston Globe and author of the new book “Takeover,” served as moderator. 

            The most interesting insights came from Cummins, who gave a candid and balanced assessment of the US attorney firings.  Cummins said that he does not view the US attorney firings as part of some master plan to politicize the Justice Department (what he described as the “Karl Rove/Dr. Strangelove” theory).  Instead, he believes that the plan was really motivated by the desire of mid-level DOJ officials (like Kyle Sampson) to open up some US Attorney slots that they or their friends could fill.  He is mostly critical of senior DOJ officials for (a) failing to exercise “adult supervision” over their subordinates and (b) for falsely telling Congress that the terminations were based on performance.   

            During the discussion, Savage referred to the May 11, 2006 email sent by Kyle Sampson, telling another DOJ official that “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.”  Although  the email says nothing about what the “real problem” was, Savage argued that the timing suggests that Lam’s firing was related to the search warrant executed on CIA official Dusty Foggo a couple of days later.

             After the panel discussion, I talked with Savage, who seems like a nice young man, and tried to persuade him that this inference is patently ridiculous.  As I explained to him, there is absolutely no evidence that (a) Sampson knew anything about the Foggo search warrant, or (b) anyone at DOJ or the WH cared about, or ever tried to stop, either the Foggo search warrant or the Cunningham investigation more broadly.  Add to this the fact that Lam was on the list of US attorneys to be fired long before there was a Cunningham investigation, and the fact that there are other DOJ emails in the same time frame indicating that the “real problem” with Lam related to her handling of immigration cases and had nothing to do with Cunningham or Foggo.  (I have written a more extensive analysis of this issue, which I will put up on this site once we get the capability).    

             Savage didn’t dispute these facts and said that he wasn’t asserting that Lam had in fact been dismissed for reasons relating to the Foggo/Cunningham investigation, only that there was evidence (“smoke” as he put it) to suggest the possibility.  I suggested that if he really believes this, he should investigate and determine whether there is any substantiation for this theory.  He is an investigative reporter after all.

Mukasey on Contempt

         In his confirmation hearing, Attorney General-designate Michael Mukasey was asked for his views on possible criminal contempt of Congress charges against executive officials such as Harriet Miers and Josh Bolten.  Mukasey told the Senate Judiciary Committee that if an official who had asserted executive privilege was referred for contempt of Congress, he would look at whether the US Attorney could say that it was unreasonable for the official to have relied on “the privilege or the order of the President.”  Mukasey explained that unless the US Attorney could say that the reliance was unreasonable, the person “can’t be found to have had the state of mind necessary to warrant charging her or him with criminal contempt.” 

            At first blush, Mukasey’s position might seem to represent a significant shift from the executive branch position reflected in a 1984 Office of Legal Counsel opinion and followed by Republican and Democratic Administrations since.  The OLC opinion argued that the congressional contempt statute simply does not apply to an executive official who carries out the President’s claim of executive privilege.  It based this conclusion both on the legislative history and historical implementation of the statute, and on the claim that the statute would be unconstitutional were it applied in this context.  The opinion in fact states that “[t]he President, through a United States Attorney  . . . may not . . .  prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.” 

            Mukasey’s statement, although ambiguous, implies that the congressional contempt statute could be applied in some circumstances to an official who asserted executive privilege on the President’s behalf.  It also suggests that the difficulty in prosecuting such an official would not lie in any special protection for the assertion of executive privilege, but in the need to establish that the official had the mens rea necessary to violate the statute. 

            If this is Mukasey’s view, however, it is inconsistent with the Supreme Court’s holding in Sinclair v. United States, 279 U.S. 263 (1929), where the Court made clear that an honest mistake of law is not a defense to a charge of violating the congressional contempt statute: “There is no merit in appellant’s contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.” 

            On the other hand, Mukasey’s view may be that executive officials, unlike private citizens, are immune from prosecution for contempt when they have a mistaken, but reasonable, view of the law.  If so, the difference between his position and that of the OLC opinion may be less than appeared at first.   It presumably would be a very rare circumstance where the Justice Department found that an official’s reliance on instructions of the President or on the written advice of the Department itself was unreasonable.   Indeed, it could turn out that Mukasey’s statement was nothing more than a more diplomatic and judicious-sounding phrasing of the executive branch’s longstanding position on congressional contempt referrals.

 

             

More on Scaglia

Roll Call’s Paul Singer has another interesting article today on Phil Scaglia, who serves as Representative Cleaver’s chief of staff while operating a lobbying business in his spare time.  The article reveals that Scaglia’s business also received payments from the Cleaver campaign and that one of Scaglia’s private clients both rented office space to the campaign and made an in-kind contribution to the campaign.  More importantly, the article indicates that the “approval” that Scaglia received from the House Ethics Committee for his various activities was only verbal. 

 The fact that Scaglia performed paid campaign work is not, in and of itself, a problem under the ethics rules.  The House Ethics Committee states that “[o]nce House employees have completed their official duties, they are free to engage in campaign activities on their own time, as volunteers or for pay, as long as they do not do so in congressional offices or facilities, or otherwise use official resources.”  Unlike conducting a private lobbying business, working on the campaign of one’s employing Member does not present a conflict of interest. 

However, it is improper for congressional staff to use for campaign purposes time that should be spent on congressional duties.  Thus the House Ethics Committee advises that “[e]mployees who do campaign work while remaining on the House payroll should keep careful records of the time they spend on official activities and, separately, on campaign activities, and demonstrate that campaign work was not done on official time.”  (Whether employees generally follow this admonition, however, is another matter). 

In Scaglia’s case, this would seem to be a particular concern because he is both operating a private business and acting as Cleaver’s campaign manager, in addition to having a full-time congressional job.  The article suggests that Scaglia may have earned more than $100,000 from his campaign work alone last year.  Perhaps he just doesn’t sleep, but there is a reasonable basis to wonder whether the taxpayers are getting short-changed in this arrangement.

With regard to the campaign’s dealings with one of Scaglia’s clients, it is not clear that this raises any concerns beyond those identified in my prior posts on his lobbying business. The fact that Scaglia’s client has a (fairly minor) business relationship with Cleaver’s campaign could pose a conflict of interest with regard to Scaglia’s campaign duties, but doesn’t directly implicate his congressional duties. Nor is the fact that the client contributed to Cleaver’s campaign necessarily a problem. Of course, if the client is lobbying Cleaver on any issue (even if Scaglia is not personally involved), this raises the conflict of interest concerns that I discussed in earlier posts.

Although Cleaver’s spokesman had previously claimed that Scaglia’s business arrangements had been “cleared” by the House Ethics Committee, the latest article notes that there is no written opinion from the committee. That makes the spokesman’s claim virtually meaningless. Although the committee staff can provide informal verbal guidance, only written opinions are actually binding on the committee. In the absence of anything in writing, it is impossible to know what was disclosed to committee staff and therefore what, if anything, the staff “cleared.”

Bathroom Break

Today’s Roll Call editorializes that the Senate ethics investigation of Senator Larry Craig “should be dropped forthwith and the resources of the committee should be devoted to serious matters, notably charges that Sen. Ted Stevens (R-Alaska) had his home rebuilt by an oil executive who has admitted bribing elected officials.”  The grounds cited by the editors are as follows: (1) Senator Craig’s alleged conduct of soliciting sex in an airport bathroom, however embarrassing and unseemly, did not violate any Senate rule; (2) Senate rules and previous ethics cases have been limited to matters involving official misconduct of some kind (eg, bribery, acceptance of improper gifts, conflict of interest, financial disclosure violations); and (3) applying Senate discipline to Senator Craig for conduct unrelated to his official duties would amount to an ex post facto law. 

While the wisdom of investigating the Craig matter can be debated, it incorrect to suggest, as the Roll Call editors do, that such an investigation would be illegitimate or beyond the proper jurisdiction of the Senate Ethics Committee.  The Constitution authorizes each House to “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”  As Justice Story explains in his classic 1833 treatise on the Constitution, it would be difficult to draw any limitation on the disciplinary power based on “the time, place or nature of the offence.”  He notes it is settled in the Senate that discipline may be imposed for “any misdemeanor” (meaning misbehavior) “inconsistent with the trust and duty of a senator,” regardless of whether the misconduct violates a statute, was committed in an official capacity, or took place in Congress or during session. 

Moreover, the Senate Ethics Manual explains that “[t]he Senate has disciplined Members for conduct it has deemed unethical or improper, regardless of whether it violated any particular law or Senate rule or regulation.”  Nor does the misbehavior have to involve “official conduct in some fashion,” as the Roll Call editorial contends.  The Senate Ethics Manual quotes the following from the Senate Select Committee to Study the Censure Charges (against Senator Joseph McCarthy): “’It seems clear that if a Senator should be guilty of reprehensible conduct unconnected with his official duties and position, but which conduct brings the Senate into disrepute, the Senate has the power to censure.’”

Indeed, Roll Call’s own ethics columnist has written, in connection with Senator David Vitter’s alleged contacts with the “D.C. Madam,” that the Senate Ethics Committee could exercise jurisdiction over that matter, despite the fact that these contacts took place before he joined the Senate.  If this is true, it is difficult to see how Senator Craig’s alleged conduct would not fall within the Committee’s jurisdiction.

(It should also be noted that while Senator Craig’s alleged bathroom conduct was unrelated to his official duties, the same cannot necessarily be said about his subsequent actions.These include pleading guilty to the disorderly conduct charge without informing the Senate, making public statements about his conduct and announcing an intention to resign which he later disavowed.)

Admittedly the broad and subjective standards applicable to congressional ethics have a great potential for inconsistent application and in some cases may result in penalizing conduct that could not reasonably have been known to violate Senate (or House) norms at the time it occurred.Such, however, is a recognized consequence of the self-disciplinary regime established by the Constitution and congressional precedent.As the Supreme Court has noted, “the process of disciplining a Member of Congress . . . is not surrounded with the panoply of protective shields that are present in a criminal case.An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body. . .”

In any event, Senator Craig would seem to have little reason to complain about unfair or retroactive application of the Senate ethics process.Is it really so surprising that soliciting sex in a public restroom might be considered the sort of thing that could bring the Senate into disrepute?

Compare Senator Craig’s case to that of Representative Bob Filner, who is currently being investigated by the House Ethics Committee.Like Senator Craig, Representative Filner was at the airport, but rather than looking for love, Representative Filner was just looking for his luggage.When it failed to show up, Representative Filner apparently got upset, and allegedly pushed an airport employee and attempted to enter a restricted baggage area.The fact that this conduct had nothing to do with his official duties and was, at worst, a misdemeanor has not prevented the House Ethics Committee from opening an investigation of Representative Filner.

Perhaps Roll Call believes that sodomy in an airport bathroom is less reprehensible than throwing a temper tantrum over lost luggage.Fair enough.But it should recognize that this is a subjective and value-laden judgment on its part, not a distinction of a legal or constitutional dimension.

If Roll Call is truly concerned about unfair and ex post facto applications of the congressional ethics rules, it should study the House Ethics Committee’s report on the Mark Foley matter.As I will explain in a later post, this report applied standards to members and staff that could not possibly have been envisioned at the time that the alleged conduct took place.Yet this report was widely condemned, not for being too harsh, but for being too lenient.

Finally, I would note that Roll Call’s reference to Senator Stevens is simply a red herring.There are many potential ethics investigations that the House and Senate Ethics Committee have deferred on the theory (some might call it a pretext) that such investigations could interfere with criminal investigations being conducted by the Department of Justice.Whether this is a valid theory, as applied to Senator Stevens or anyone else, has nothing to do with whether there should be an investigation of Senator Craig. The Senate Ethics Committee has, or can easily acquire, the resources to investigate both Senators Craig and Stevens, should it so choose.