Filing an ethics complaint against Majority Leader Kevin McCarthy over the House Benghazi committee — an idea making the rounds among Capitol Hill Democrats — could ease some pressure on Hillary Rodham Clinton.
But proving McCarthy ran afoul of House rules will likely take a lot more than his Sept. 29 comments on Fox News — including witnesses or documents that back up Democrats' repeated assertions that the 17-month Benghazi probe is little more than a GOP attempt to smear the Democratic Party's presidential front-runner. The legal question in such cases "goes to the heart of kind of the inseparability of political and official" said Dan Schwager, the former staff director of the House Ethics Committee who departed in 2013 for the D.C. offices of Miles & Stockbridge PC, explaining it's "murky area."
Further complicating the matter is the timing of the race to succeed John A Boehner as speaker — a race in which McCarthy is the overwhelming favorite . Rules state the committee shall not accept any complaint submitted within 60 days prior to an election in which the subject of the complaint is running. Asked if the impending vote for speaker qualifies, committee spokesman declined to comment on the record.
Schwager said proving a violation of the law requires showing the political purpose was "very explicit, and it would probably have to exclude any legitimate function."
If investigators found a member sent an email stating, "I want to propose this bill because I know corporation Y will donate $10,000 to whoever sponsors a bill like this," the violation would be clear. But an email stating, this bill is needed and corporate donations could follow, is not enough. "You probably shouldn't take that into account," Schwager said, but it's not enough to prove explicitly political purposes.
In his now-infamous interview with Fox host Sean Hannity, McCarthy boasted that the House Benghazi panel had dinged the Clinton campaign.
"Everybody thought Hillary Clinton was unbeatable, right?" he said. “But we put together a Benghazi special committee. A select committee. What are her numbers today? Her numbers are dropping. Why? Because she’s untrustable. But no one would have known that any of that had happened had we not fought to make that happen.”
Asked last week if McCarthy broke the rules, Rep. Elijah E. Cummings, the ranking Democrat on the panel probing the 2012 attacks in Libya, deferred to 10 colleagues who sit on the House Ethics Committee. "I have no jurisdiction," the 10-term Maryland lawmaker said on Oct. 1. "It's up to them."
Though McCarthy has walked back from his initial suggestion, Democrats have continued to hammer the duration of the investigation and the price tag: $4.5 million, according to Cummings. Clinton is scheduled to appear before the panel on Oct. 22.
If a rank-and-file Democrat did file a complaint, there is no requirement that the ethics committee publicly disclose it. First, it would be up to Chairman Charlie Dent, R-Pa., and ranking member Linda T. Sánchez, D-Calif., to jointly determine if the information submitted constitutes a complaint.
Amid reports of Democrats mulling those options, McCarthy's press office again sought to clarify Tuesday that the investigation has nothing to do with politics.
"The mission of the Select Committee on Benghazi is to find the truth — Period. The integrity of Chairman Gowdy, the Committee and the work they've accomplished is beyond reproach," McCarthy said in a statement.. "The serious questions Secretary Clinton faces are due entirely to her own decision to put classified information at risk and endanger our national security."
Related: Chaffetz Personally Tells McCarthy to Apologize for Benghazi Remarks Boehner Weighs In on Benghazi McCarthy Gets Earful From Both Sides McCarthy Spokesman: Benghazi Investigation Isn’t About Politics McCarthy’s Benghazi Committee Brag Brings Rebuke From Clinton Campaign See photos, follies, HOH Hits and Misses and more at Roll Call's new video site. Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.