The Trump Organization’s Complaint Against the House Judiciary Committee

Yesterday counsel for the Trump Organization wrote to the House Judiciary Committee alleging that the committee’s special oversight counsel, Barry H. Berke, “is ethically conflicted from representing or advising the Committee on any matters pertaining to the Company, and to respectfully demand that the Committee cease and desist from all investigative or other activities adverse to the Company.” My initial reaction from media reports was that this was a frivolous claim. After reading the actual letter, however, the issue turns out to be a bit more complicated.

To be clear, the demand that the Judiciary committee cease all investigations or other activities adverse to the Trump Organization is ridiculous. Even assuming Berke is personally conflicted (which, as discussed below, he may be), there is no basis for arguing this conflict somehow disables the committee from performing its legislative and investigative functions.

The Trump Organization analogizes this to a situation where a law firm is disqualified from representing a client in court, but it would be more analogous to prohibiting the client itself from participating in the litigation. The company’s letter cites nothing in the rules of professional conduct to suggest that a government agency or entity can be barred from conducting the public business simply because it hired a lawyer with a conflict. To the contrary, state bars have recognized that such interference would be improper. Thus, for example, DC Legal Ethics Opinion 308 notes that the normal rules of imputed disqualification do not apply to government agencies “[d]ue to the draconian effects of imputed disqualification on the ability of the government to obtain legal services.” Furthermore, even if the bar rules could be read to permit such a draconian result, there would be serious constitutional objections to any attempt by the bar to regulate the operations of Congress in this fashion. See Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 208 & n. 59 (2007).

With regard to Berke himself, there would not have been an ethical problem had he simply left his prior law firm (Kramer Levin) and joined the staff of the Judiciary committee. Although Kramer Levin  apparently has had a longstanding attorney-client relationship with the Trump Organization, there is no allegation that its representation has involved matters that are the same as or substantially related to matters that Berke may be handling at the Judiciary committee. In addition, it is not claimed that Berke himself was involved in representing the Trump Organization. Therefore, under ordinary circumstances, he would be free to participate in the committee’s investigation of the company.

However, Berke did not join the committee as an ordinary staffer. Instead, according to the committee’s press release earlier this month, he was “retained on a consulting basis as special oversight counsel[] to the Majority Staff, advising the Committee’s Oversight Counsel team on a range of issues.” Although his law firm is not being paid for the time he is spending on committee business, he remains at least nominally as a partner in Kramer Levin. The Trump Organization plausibly argues that this arrangement violates bar rules prohibiting a lawyer from handling matters adverse to an existing client (the Trump Organization maintains that it is an existing client of Kramer Levin, though there may be some factual dispute about that).

In addition to this question of professional ethics, it is not clear to me that this arrangement has been adequately scrutinized under  House rules. It is true that committees sometimes retain outside counsel for purposes such as conducting discrete investigations (usually involving internal ethical misconduct), providing specialized legal advice or litigating a particular case. The arrangement with Berke, however, looks more like someone who fulfilling the role of a regular staffer but being exempted from the normal restrictions on outside activities and income. Perhaps it is perfectly ok (it was approved by the Committee on House Administration), but someone ought to take a closer look. The Office of Congressional Ethics, for example.

Who is a “Constituent”?: Lessons from the Menendez Case

A significant portion of a congressional office’s resources are devoted to performing “casework,” which the Congressional Research Service defines as “the response or services that Members of Congress provide to constituents who request assistance.” While this seems like a noncontroversial definition, it raises two more difficult questions: (1) who are the “constituents” for whom a Member of Congress may perform casework; and (2) when, if ever, is it appropriate for Members to perform casework for non-constituents. The House and Senate answer these questions somewhat differently. See CRS Report for Congress, Casework in a Congressional Office: Background, Rules, Laws, and Resources 3-4 n.13 (Jan. 3, 2017).

The House Ethics Manual notes that “[a]s a general matter . . .  a Member should not devote official resources to casework for individuals who live outside the district.” This admonition is based partly on the statute authorizing funding of the Members’ Representational Allowance, which provides that the MRA “’is to support the conduct of the official and representational duties of a Member of the House of Representatives with respect to the district from which the Member is elected.’” House Ethics Manual at 310 (quoting 2 U.S.C. §57b, now codified at 2 U.S.C. §5341(a)) (emphasis added by House Manual). The House Manual thus provides both a definition of “constituent” (one residing in the Member’s district) and an admonition against performing casework for non-constituents. See also Dennis F. Thompson, Ethics in Congress 91-92 (1995) (noting that the House Manual’s “sensible discussion” of casework is not explicitly endorsed in House or committee rules).

To be sure, the House guidance does not categorically prohibit providing assistance to non-constituents. The House Manual notes that there are circumstances in which it might be appropriate to do so, such as where “working for non-constituents on matters that are similar to those facing constituents may enable the Member better to serve his or her district.” House Ethics Manual at 310. Members may also vary on how they interpret this guidance. For example, the website of Representative Sean Duffy states flatly that “Members of Congress are prevented from assisting constituents residing outside their Congressional District.” Others may take a more nuanced view. Members are advised, however, that there is at least a strong presumption against performing casework for non-constituents.

In contrast, the Senate’s guidance on this issue is less clear. Senate Rule 43(2) provides that senators and staff may provide certain assistance with matters pending before government agencies “at the request of a petitioner.” The Senate Ethics Manual notes that “petitioners . . . may or may not be constituents,” but it does not elaborate on this observation or explain if or when it is appropriate for senators to provide assistance to non-constituents. See Senate Ethics Manual at 178. The Senate Manual discusses Rule 43 in the course of a chapter on “Constituent Service,” and its discussion largely assumes that senators will be providing assistance to constituents. Id. at 177-86. Nonetheless, CRS suggests the Senate guidance provides greater leeway to assist “nonconstituents who might seek congressional intervention in administrative proceedings [such as] foreign-born individuals seeking to emigrate to the United States, or a family or other interested party who live outside a Member’s constituency on behalf of a resident constituent.”

During the course of Senator Robert Menendez’s bribery trial, the prosecution argued that Menendez’s assistance to Dr. Melgen, a personal friend who resided in Florida, was improper or irregular because Melgen was not a constituent of the New Jersey senator. The court directed the parties to brief the meaning of “constituent” for purposes of instructing the jury.

Prosecutors filed a brief response stating that “Senator Menendez’s constituents are the New Jerseyans that he was elected to represent in the United States Senate.” Menendez’s lawyers, however, argued that there was not a single definition of “constituent.” They acknowledged “Dr. Melgen was a citizen of Florida, not New Jersey, and [therefore] was not Senator Melendez’s electoral constituent.” (emphasis in original). They contended, however, that Menendez’s “constituents” were not limited to electoral constituents.

According to Menendez’s legal team, “no law, custom, or congressional precedent supports the prosecution’s suggestion that a legislator cannot advocate on behalf of someone outside the legislator’s electoral constituency.” Moreover, “as advances in technology, travel, and communication (particularly the Internet) have created greater interconnectedness throughout the citizenry, political constituencies based on ideology, cultural ties, and other criteria—as well as these constituencies’ financial support—have outstripped the geographic boundaries of any given State or District.” Thus, it is increasingly common, they suggest, for legislators to represent “political constituencies” and not merely electoral ones.

In particular, “[r]acial and ethnic constituencies have . . . long played a key role in nationalized, non-electoral constituencies.” Thus, because Senator Menendez is “one of the only Senators of Latino heritage,” he regularly “advocates for Latinos across the country on a range of issues from immigration reform to discrimination.” He also “has felt a special obligation to help Hispanic-Americans—no matter where they live.” (This obligation apparently extended to helping Dr. Melgen, a Hispanic-American, with respect to his personal and business interests, such as intervening on his behalf when a federal agency found the doctor had overbilled Medicare by $8.9 million.)

Finally, Menendez’s lawyers contended that “Senate Rules do not support the view that a Senator’s duties are confined to electoral constituencies.” Pointing to Rule 43’s broad reference to “petitioners,” they note that nothing in the rule “defines ‘constituent’ or restricts a Senator’s duties to geographic constituents.”

For purposes of the criminal trial, the defense’s ultimate point was that the meaning of “constituent” only mattered to the extent it was relevant to the senator’s state of mind, and therefore it was a question of fact for the jury to decide whether Menendez believed he was assisting a constituent (as opposed to providing favors in exchange for the personal gifts and campaign contributions he had received from Melgen). Thus, it really did not matter whether Menendez’s understanding of Senate rules on constituent service was accurate so long as it was what he believed.

However, Menendez’s conduct was subsequently considered by the Senate Ethics Committee, which issued this letter of admonition to the senator on April 26, 2018. Somewhat surprisingly, though, the committee did not criticize Menendez’s understanding of constituent service. Instead, it stated:

[T]he Committee understands that you are committed to assisting constituents. Indeed, the Committee has long recognized that “[r]esponding to inquiries of petitioners and assisting them before executive or independent government officials and agencies” is an “appropriate exercise of the representational function of each Member of Congress, as well as an important function of congressional oversight.” Your assistance to Dr. Melgen, however, went well beyond Senate norms. You took action, over the course of several years, on behalf of one specific individual who repeatedly gave you many valuable gifts and who was also among your closest friends, which included direct contact with officials at the highest levels of government.

Letter of Admonition at 3 (citation omitted). This passage does not make any reference to the fact that Melgen did not reside in New Jersey. Arguably, therefore, it implicitly suggests that the committee accepted Senator Menendez’s theory of “political constituencies,” including the idea that a senator may appropriately choose to provide assistance to out-of-state individuals based on race or ethnicity (even with respect to issues unrelated to either).  If this is an accurate interpretation of the Senate Ethics Committee’s position, it suggests that the gulf between House and Senate “norms” on this question has grown even wider.

 

Me Too’s Privileged Few

If you are interested in the law and custom of Parliament (lex et consuetude parliamenti), you should follow Jack Simson Caird on twitter (@jasimsoncaird). Had you done so, you too would have learned of a recent controversy involving parliamentary privilege and legislative self-discipline that caught my attention.

The story begins on October 24, 2018, when the Daily Telegraph, a British newspaper, charged that a “leading businessman” had engaged in “alleged sexual harassment and racial abuse of staff.” This reporting followed an eight month investigation by the Telegraph of the allegations in question. However, the newspaper was unable to reveal the identity of the businessman and other details of its findings because of an injunction issued by a three-judge appellate court at the request of the businessman and his companies. This ruling was widely criticized (at least according to the Telegraph) by MPs and others as a violation of press freedom and an inappropriate attempt to gag harassment victims.

The British court’s opinion explains that five employees had made allegations of “discreditable conduct” against the businessman in question, but all of these claims had been settled by agreements in which the employees had received “substantial payments” and the parties had entered into nondisclosure agreements. The court found that the claimants had made a showing sufficient to establish the likelihood “a substantial part of the [Telegraph’s] information was obtained through breach of duty of confidentiality to the Claimants, either in breach of the NDAs, or by those with knowledge of the NDAs, and that the Telegraph acquired the information with knowledge both of the NDAs and the breach of confidence.” Accordingly, the court issued a temporary injunction prohibiting the newspaper from publishing the businessman’s identity or other details about the alleged misconduct until a full trial on the merits.

Needless to say, the substantive law in the U.K. is quite different from that of the United States, where the First Amendment presumably would prevent a judicial order of this kind. The divergence is illustrated by the British court’s quote of the following from an earlier case:

To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the speech in Parliament, there can be no doubt that the newspaper would be in breach of duty if it purchased and published the speech.

The notion that the advance leaking of a budget speech is an “extreme example” potentially justifying a prior restraint against publication would strike Americans as outlandish (though, to be fair, bribery of a government official to provide confidential information might well have other civil or criminal consequences in the U.S.).

What is interesting for our purposes, however, is not the substantive law on press freedom, but what happened next. On October 25, 2018, immediately following the issuance of the injunction, Lord Peter Hain revealed in the House of Lords some of the confidential information covered by the court’s order, including the identity of the businessman in question. This in turn allowed the British media, which otherwise would have been risking contempt of court, to report the information to the general public. (See this blog post by Professor Jelena Gligorijevic for further details). Hain’s action has been widely condemned as an abuse of parliamentary privilege.  Continue reading “Me Too’s Privileged Few”

Sexual Harassment and the Office of Congressional Ethics

As you are no doubt aware, there has been a great deal of controversy in the past few months about Congress’s handling of internal employment issues, most notably sexual harassment claims. It is less likely you are aware that Congress has actually moved rather expeditiously to address the problem. Last week a bill to do just that was introduced in the House by Representatives Gregg Harper and Robert Brady, respectively the chair and ranking member of the Committee on House Administration. The bill is titled the “Congressional Accountability Act of 1995 Reform Act,” H.R. 4822. (Someone could have put more effort into this “short title,” but we will refer to it simply as “CARA.”).

The Committee on House Administration has jurisdiction over House labor and employment issues, including the application of labor and employment laws to Congress through the Congressional Accountability Act of 1995 (CAA). In the wake of widespread publicity about the handling of sexual harassment claims in Congress, the committee held hearings (November 14 and December 7, 2017) to address perceived weaknesses in the CAA and the need to prevent sexual harassment in the congressional workplace. The committee heard from various witnesses, including representatives of the Office of Compliance (OOC), the congressional agency responsible for administering and enforcing the CAA.

CARA addresses the problems identified in these hearings through various measures to better protect congressional employees from sexual harassment and other employment violations, including (1) establishing an Office of Employee Advocacy in the House to advise and assist employees with regard to rights and claims under the CAA; (2) authorizing the OOC General Counsel to conduct investigations of sexual harassment and other employment claims; (3) holding representatives and senators personally liable for awards and settlements arising from employment discrimination (including sexual harassment) or retaliation where their individual misconduct was involved; and (4) requiring the OOC to publish more detailed information about awards and settlements under the CAA.

My purpose here is not to analyze CARA’s proposed reforms or take a position on the bill. I merely observe that, on its face, CARA seems to be a textbook example of how “regular order” is supposed to work. Congress identifies a problem, holds hearings, and proposes a legislative solution, preferably reflecting a broad consensus within the committee of jurisdiction. CARA in fact is cosponsored by every member of the Committee on House Administration. It also very bipartisan, with 14 Republicans and 20 Democrats listed as sponsors or co-sponsors. Among them are the chair and ranking member of the House Ethics Committee and two of the most outspoken House members on the issue of sexual harassment, Representatives Jackie Speier (D-CA) and Barbara Comstock (R-VA).

(Note: I have known Comstock since we both worked on the Hill in the 1990s and have supported her in races for state legislature and Congress).

Of course, the introduction of CARA is far from the end of the legislative process. The bill is now referred back to the Committee on House Administration and three other committees with some jurisdiction over its provisions (Ethics, Oversight and Government Reform and Ways & Means) where it can be further studied, amended and eventually marked up for consideration by the full House. There will be plenty of opportunities for further deliberation and changes in committee, not to mention (if it gets that far) on the House floor and in the Senate.

All of which makes it a little odd that the immediate reaction in the ethics/reform community to CARA was not applause (though my understanding is that it is generally supportive of the bill), but outrage directed at a single provision, Section 407, which is deemed to represent an insidious effort by the “House leadership” (though what the House leadership has to do with this, I am not sure) “to purposefully defang the Office of Congressional Ethics (OCE) and undermine its role in upholding high ethical standards in the House of Representatives.”

So what exactly does Section 407 do? Continue reading “Sexual Harassment and the Office of Congressional Ethics”

“Nothing I have done as a senator, nothing, has brought dishonor on this institution . . .”

“And I am confident the ethics committee would agree.”

I was struck by these words from Senator Al Franken’s resignation speech (or perhaps semi-resignation speech) today. While Franken is to some extent denying the factual allegations (i.e., groping various women) made against him, the point of this particular line was to stress that he has done nothing “as a senator” to dishonor the Senate. One has to assume that he is saying that even if the allegations against him are true, they would not constitute “improper conduct which may reflect upon the Senate,” as these words are used in S. Res. 338 (2)(a)(1). (Otherwise there would be no reason for the qualification “as a senator” in his statement.).

The Senate Ethics Manual makes clear a senator may be disciplined “for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” Senate Ethics Manual at 13; see also id. at 432-36 (reviewing conduct found by the Senate to constitute “improper conduct which may reflect upon the Senate” or bring the Senate into “dishonor and disrepute”). But in all of the cases in which the Senate has taken disciplinary action, there has been at least some indirect connection between the misconduct and the senator’s official duties or status.

The most tenuous such connection was in the case of Senator Larry Craig, who was charged with a misdemeanor for soliciting sex in a men’s bathroom at the Minneapolis airport. The Senate ethics committee ultimately issued a letter of admonition to Craig over the incident, in which the committee found that Craig had improperly attempted to use his position to avoid being arrested and charged, and then had improperly attempted to avoid the consequences of his guilty plea.  The committee’s letter to Craig concluded that “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” (Yes, the committee used the word “pled,” which apparently means its letter was written by Donald Trump).

Simon Davidson, Roll Call’s ethics columnist, and I debated at the time whether the Craig case involved the first instance of the ethics committee punishing a senator in part for purely personal conduct (i.e., soliciting sex in a bathroom) or whether the committee’s action was dependent on Craig’s subsequent actions which involved conduct at least somewhat related to Craig’s official duties. My view was that the committee was in fact exercising jurisdiction over purely personal conduct, though attempting to downplay that aspect of its action. As I noted, “the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators.”

My broader interpretation of the Craig admonishment would support the committee’s exercise of jurisdiction in the Franken case, except for one very important distinction. Craig was a senator at the time he engaged in the misconduct. Franken was not. As mentioned in my last post, the Senate has never disciplined any senator for conduct that occurred before he or she entered the Senate. Moreover, it has on a number of occasions refused to do so precisely because of doubts about its jurisdiction over such matters.

The combination of the personal nature of Franken’s alleged misconduct and the fact that it occurred before he entered the Senate makes it highly questionable whether this is a matter that the ethics committee could even investigate based on past precedent. There is certainly no precedent that would support the imposition of any serious sanction based on the facts alleged, even if they are all true.

Which is perhaps why Franken wanted the matter before the ethics committee in the first place.

The Senate’s Authority to Punish or Expel Roy Moore: A Response to Stan Brand

Former House Counsel Stan Brand has written this article in Politico entitled “Why the Law Might Not Allow the Senate to Expel Roy Moore.” I am working on a longer piece dealing with jurisdictional and prudential limits on the Senate Ethics Committee, but I want to take this opportunity to comment on Brand’s article. In brief, I agree with Brand on the bottom line (i.e., it will be extraordinarily difficult for the Senate to punish, much less expel, Moore for his alleged misconduct), but I think a little more precision with regard to the constitutional and legal issues would be helpful.

Moore, of course, is the Republican candidate in the Alabama special senate election to be held on December 12. For the last month or so (it seems longer), the main issue in that election has been Moore’s alleged sexual misconduct with a number of teenage girls (at least one as young as 14) about 30 years ago. If Moore should win the election, senate leaders have suggested that he will nonetheless have to face these accusations before the Senate itself.

As Brand notes, it is clear that the law does not permit the Senate to “exclude” Moore, that is, to refuse to seat him on the grounds that he lacks the constitutional qualifications to serve in the Senate. Moore has the constitutionally prescribed qualifications (age, citizenship and residency) and so the Senate must seat him.

But the Senate also has the power to punish any senator for “disorderly behavior” and, with the concurrence of two-thirds of the Senate, a senator may be expelled. Brand suggests that these powers may not extend to Moore’s case for three reasons: (1) Moore’s misconduct occurred in a prior Congress; (2) Moore’s conduct occurred before he entered the Senate; and (3) Moore’s conduct was known to the electorate at the time that it (hypothetically) elected him.

The first of these points is not well taken. It is true that there is language in early precedents suggesting that members cannot be punished or expelled for conduct occurring in prior congresses. (Professor Turley alluded to this idea as well). To the extent that this position was ever seriously entertained, it made more sense for the House (all the members of which stand for election every two years) than for the Senate, a continuing body consisting of members elected for six year terms. But in any event, both bodies have long recognized that they can punish or expel members for conduct occurring in prior congresses. House rules, for example, allow its ethics committee to investigate matters going back to the third previous congress and longer if the committee determines the prior conduct is directly related to an alleged violation occurring in more recent congress. House Rule XI (3) (b) (3). The Senate has declined to adopt any statute of limitations at all.

The second point is far more substantial. As far as I know, neither the House nor the Senate has ever disciplined, much less expelled, a member for conduct preceding his or her first election to the legislative body. On a number of occasions, the Senate has declined the opportunity to take cognizance of alleged misconduct occurring before first election. The only question is whether this precedent reflects a jurisdictional limit (i.e., a constitutional limit on the Senate’s power) or merely a strong aversion to using the Senate’s power in such situations. It should also be noted that whether the limit is jurisdictional or prudential, there is some precedent that a senator can waive the limit by asking for an investigation of his own conduct. See Josh Chafetz, Congress’s Constitution 252 (2017) (discussing the 1904 case of Senator Charles Dietrich, who asked the Senate to appoint a committee to investigate allegations that he behaved corruptly in his prior position as governor of Nebraska). This is a point that Moore’s lawyers will want to keep in mind (as perhaps Senator Al Franken’s should have as well).

Finally, Brand’s third point alludes to the “Wilkes principle,” which we have discussed in this blog on prior occasions (see here, here, and here). Essentially, it means that a legislative body should not expel a member for conduct that was fully known to the voters at the time of his or her most recent election. The voters, as Benjamin Cassady puts it, have the power to grant an “electoral pardon” with respect to a candidate’s prior misconduct. See Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209, 218 (2014).

Like Professor Chafetz, I doubt that this limit is jurisdictional in nature. See Josh Chafetz, Democracy’s Privileged Few 210-12 (2007). Although ordinarily it would be “impermissibly undemocratic” for a legislative body to expel a member after his or her constituents have indicated either forgiveness or approval of the conduct in question, the framers of the Constitution declined to prohibit expulsion twice for the same offense. In truly extraordinary circumstances, therefore, it may be permissible for the legislative body to expel a member for conduct known to the voters. In addition, there is always the possibility that “new” information not available to the voters will emerge after the election. At the moment, however, it seems very unlikely that the Senate could expel Moore without violating the Wilkes principle.

In short, while reasonable people can disagree whether the Senate has the constitutional authority to expel (or even punish) Moore for the conduct in question, there can be no doubt that the Senate would have to go well beyond any of its existing precedents to take such action.

Organizations Call for a House Task Force on Privately-Financed Foreign Travel

A group of watchdog organizations, including the Campaign Legal Center and Common Cause, sent this letter to Speaker Ryan (congratulations/condolences to the new speaker, BTW) last week asking for a moratorium on privately-financed foreign travel and the creation of a task force to review House rules and procedures related to such travel. Revelations relating to the Baku trip, the letter says, “highlight the failure of current travel rules to protect the integrity of the House.”

Questions the Task Force should address, the letter says, include (1)”are current procedures used by the House Committee on Ethics adequate to discover if shell entities are providing resources to a sponsoring organization?”; and (2) “what in House rules and procedures prevents foreign governments and businesses, which may be working against U.S. interests, from funneling money to an organization by paying for congressional trips?”

 

Was House Ethics Tricked into Letting Gulenists Treat?

A USA Today investigation by Paul Singer and Paulina Firozi finds some spooky things going on with congressional travel sponsored by Gulenist groups over the past decade:

A dozen different Gülen groups have sponsored congressional travel since 2008 and have filed forms with the House certifying that they were paying for the trips. The House Ethics Committee approved all the trips in advance based on the forms the Gülen groups submitted.

But a USA TODAY investigation found many of those disclosures were apparently false. Some of the Gülenist groups claimed to be certified nonprofits, but they do not appear in state or IRS databases of approved charities. Groups that did register with the IRS filed tax forms indicating that they did not pay for congressional travel. And five of the groups admitted to congressional investigators earlier this year that a Gülenist group in Turkey was secretly covering the costs of travel inside Turkey for lawmakers and staff.

Very scary. The Ethics Committee seems to be having a hard time detecting these ghost sponsors. Maybe it needs some help.

 

“Thorough Review” of Baku? I Say Not True.

On July 31, 2015, the House Ethics Committee issued its report on the trip to Baku, Azerbaijan by some 42 House members and staffers. The primary purpose of the trip, which took place at the end of May 2013, was to attend a conference in Baku entitled “U.S.-Azerbaijan: Vision for the Future.” The conference was organized by two American non-profit organizations, the Turquoise Counsel of Americans and Eurasians (TCAE) and the Assembly of the Friends of Azerbaijan (AFAZ), both of which were headed by a man named Kemal Oksuz.

All the congressional travelers sought and received the Committee’s prior approval for the trip, as has been required by House travel regulations since 2007. The Committee’s report contends that this approval was not a mere rubber stamp, stating that “[s]ince the House rule changes regarding  privately-sponsored travel in 2007, the Committee has conducted a thorough review of each proposed privately-sponsored trip.” 7-31-15 Rep. at 11 (emphasis added). These reviews are conducted by the Committee’s “nonpartisan, professional staff,” which “recommends changes where necessary to bring a proposed trip into compliance with relevant laws, rules, or regulations and, on occasion, informs House Members and employees that a proposed trip is not permissible.” Id.

Five different nonprofit organizations, including TCAE, “separately invited” particular members and staff to travel to Baku for the conference. 7-31-15 Rep. at 1. The other four were (1) the Council of Turkic American Associations (CTAA); (2) the Turkic American Federation of the Midwest (TAFM); (3) the Turkic American Alliance (TAA); and (4) the Turkic American Federation of the Southeast (TAFS). Each of these organizations completed a Primary Trip Sponsor Form stating that it was the sole sponsor with respect to its travelers and that it had “not accepted from any other source funds intended directly or indirectly to finance any aspect of the trip.” Id. at 12.

The Committee states that its “staff reviewed these forms and asked Members and sponsors for additional information where necessary.” 7-31-15 Rep. at 12. No detail is provided on what additional information was asked for or received. However, it is implied that little information was needed with regard to funding because “[n]othing in those submissions gave the Committee reason to doubt the truth or accuracy of the purported sponsors’ representations regarding the sources of the Trips’ funding.” Id. at 2.

At the time the Committee issued its report, it declined to release the longer and more detailed review by the Office of Congressional Ethics (OCE). See 7-31-15 Rep. at 13-16. On October 7, however, the OCE Board decided to release the results of its review, including its report and findings, along with more than 1,000 pages of exhibits. I had requested the release of this material (though I doubt this had any influence on the Board’s decision) in part to see what kind of “thorough review” the Committee did before approving the Baku trip.

Continue reading ““Thorough Review” of Baku? I Say Not True.”