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.”

Rare Bipartisan Agreement: Let’s Sweep Baku Gifts Under the Rug

It’s hard to decide which is the worst part of the House Ethics Committee’s report on member/staff travel to Baku, Azerbaijan, but I am going to go with the discussion of tangible gifts. At least it is easiest to explain why that part is wrong. I will discuss other aspects of the report in future posts.

As you may recall, a large number of members and staff traveled to a 2013 conference in Baku, courtesy of a rather shadowy group of Turkish American non-profit organizations. The travel was approved in advance by the Ethics Committee, but the approval letter explicitly warned each traveler about the possible receipt of gifts from foreign governments during the trip. Specifically, the letter noted 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.” Report at 20 n. 95.

Continue reading “Rare Bipartisan Agreement: Let’s Sweep Baku Gifts Under the Rug”

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.

Continue reading “Lessons from a Byzantine Scandal”

Delegate Morrissey and the Voters Who Love Him

So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted:

All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

It’s always a good idea to qualify your predictions so subsequent events don’t make you look like a fool. As it happens, Morrissey’s constituents (at least those who bothered to show up in a low turnout election) were perfectly happy to keep him as their representative in Richmond, even though it means he will be commuting from a jail cell to his seat in the oldest continuous lawmaking body in the Western Hemisphere.

Continue reading “Delegate Morrissey and the Voters Who Love Him”

Michael Grimm, John Wilkes and the House’s Power to Punish for Conduct Preceding Election

It is being reported that Representative Michael Grimm has agreed to resign his seat in the next Congress. Grimm was indicted on multiple federal charges in April, was reelected handily in November and last week pled guilty to a single count of tax fraud stemming from his ownership and management of a health food restaurant before his initial election to Congress in 2010. Grimm initially indicated that he would not resign, but he apparently changed his mind after a heart to heart with Speaker Boehner.

I have been looking into some of the legal issues that the House would have faced had Grimm decided to remain in Congress. Since these may now be moot, I will just briefly list the three major problems the House would have encountered in trying to discipline or expel Grimm for the offense to which he pled guilty.

Continue reading “Michael Grimm, John Wilkes and the House’s Power to Punish for Conduct Preceding Election”

Senator Ervin on Congressional Discipline and Speech or Debate

I have previously explained that the Speech or Debate Clause does not protect members from discipline by their legislative body, up to and including expulsion. Since the subject arose again in the last couple of days (in the course of a Glenn Greenwald initiated thread on Twitter), it may be worth adverting to Senator Ervin’s argument before the Supreme Court in Gravel v. United States.

Senators Ervin and Saxbe represented the Senate as amicus curiae in the case, and the Court gave the Senate time during oral argument. Ervin’s argument stressed that the Senate “holds no brief” for Senator Gravel or his actions (i.e., reading of the classified Pentagon Papers in a subcommittee meeting). He acknowledged that Gravel’s actions may have been improper and/or in violation of Senate rules, but he contended that the Constitution places these questions exclusively within the jurisdiction of the Senate.

Senator Ervin stressed that a member of Congress is “not accountable” to the executive or judicial branches for his legislative activity, whether that activity is “regular or irregular under the rules of the legislative body of which he is a member.” In Gravel’s case, those questions were the business only of the Senate itself. In response to a justice who asked “That inquiry or discipline or both is something exclusively for the Senate?,” Ervin responded, “That’s right.”

Pointing out that the Rules of Proceedings and Discipline Clauses are in the section of Article I immediately preceding the section in which the Speech or Debate Clause appears, Ervin reiterated: “Our position is that . . . even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that is a matter for the judgment of the Senate and no other power in our government has the right to make any official pronouncement on that subject.”

Greenwald and his ilk argue that senators who believe (or claim to believe) that classified information should be released should put their money where their mouth is by reading the information on the floor of the Senate, where they would be protected by Speech or Debate immunity from legal punishment (though not from congressional discipline). Whatever one thinks about such congressional “civil disobedience” as a normative matter, I am puzzled that anyone would advocate it when the senators have not yet used, or attempted to use, the established Senate procedure for releasing classified information.

Judge Bates Dismisses Rangel’s Lawsuit

Last week, as expected, Judge Bates dismissed Representative Rangel’s lawsuit against the Speaker, the Clerk and various former members and staff of the Ethics Committee. As the court notes in conclusion, “everything on Rangel’s wish list implicates insurmountable separation-of-powers barriers to the Court’s exercise of authority,” with the “most problematic [being] Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him.”

This is certainly correct, and I think the court’s 49-page opinion gives Rangel’s arguments rather more attention than they deserve. Dismissal was more than justified by the following points made in the opinion:

  1. Rangel sued the wrong party. The court points out that “Rangel’s reputational harm was not caused by any of the defendants but by the House as an independent body- and it is not a party to this action.” (slip op. at 11)
  2. An order against these defendants would not have redressed Rangel’s alleged injuries because the defendants have no power to alter the House’s Journal (the relief requested by Rangel) on their own. (slip op. at 35)
  3. Even if the House had been a party, the court lacks the power to order the House to take any action that would redress Rangel’s alleged injuries. “This Court has the same ability to order the House to edit its own Journal as it does to order the House to discipline one of its Members or to promulgate a particular Rule- none.” (slip op. at 35-36)
  4. All of the defendants were in any event immune under the Speech or Debate Clause. (slip op. at 36-44)

Unfortunately, Judge Bates was not content to rest his opinion on these points but also engaged in an extensive, unnecessary and rather confusing discussion of the political question doctrine. He concludes that Rangel’s claims are barred by the political question doctrine, but only because Rangel failed to state a viable constitutional claim in the first place. The political question doctrine, however, is designed to identify situations in which a non-judicial body has the final say on a constitutional issue. If it applies only because the court finds no constitutional issue to resolve, invoking the doctrine seems pointless. The court seems to think that directly reviewing Rangel’s claims on the merits, rather than as part of the political question analysis, would evince a “lack of disrespect” (I think it means lack of respect) for the House, but the price of this politeness is to make the political question doctrine even murkier than it is already.

On balance, though, this opinion should stand as a caution against challenging House disciplinary proceedings in court, and that’s a good thing. One final note—someone should bring to the court’s attention that Nixon v. United States, 506 U.S. 224 (1993) involved Judge Nixon, not former President Nixon. See slip op. at 33 (referring to “an ex-President challenging his impeachment in the courts.”).