As Roll Call reported Monday, the U.S. Attorney’s office in San Diego requested tens of thousands of pages of documents of information from three House committees in an expansion of their inquiry that began with now-imprisoned ex-Rep. Duke Cunningham (R-Calif.). This was revealed as media reports last week confirmed that the Justice Department was examining broader issues related to the House Appropriations Committee, including Chairman Jerry Lewis’ (R-Calif.) role in overseeing defense spending earlier this decade.
The Justice Department, as well as the U.S. Attorney’s office in San Diego, declined to comment about the tactics they have used in pursuit of rooting out alleged corruption in the halls of Congress.
Most legal experts agree that Members have little to no protection from an aggressive Justice Department, both with regard to the way Congress has written the laws governing investigations and the way the courts have ruled.
“This is par for the course. This is what they’ve been empowered to do,” said Stanley Brand, a former House General Counsel in the late 1970s and early 1980s during the ABSCAM probe. Brand is now a white-collar attorney specializing in cases involving ethics in Washington, D.C.
During the ABSCAM investigation, according to Brand, the Justice Department used in its prosecutions private conversations between House Members that were held in the back of the chamber during votes. The courts upheld that those conversations were not protected under the Speech or Debate Clause, which is the most oft-cited privilege by Congress against executive branch inquiries.
Some Members also said that, for better or worse, prosecutors are naturally going to look at big public figures.
“I think Members of Congress are high-profile targets,” said Rep. Dana Rohrabacher (R-Calif.), who has remained friendly with ex-lobbyist Abramoff throughout that probe. “Prosecutors will go after those targets in a much more energetic fashion.”
In an interview two days after Abramoff’s guilty plea in early January, Noel Hillman, then the head of Justice’s Public Integrity Section, was unapologetic about the aggressive new tactics, particularly undercover techniques.
Hillman, who is now awaiting Senate confirmation to a federal judgeship, said he had led a “more aggressive [approach] in the ways we investigate the cases: the more effective use of cooperators, the more effective use of undercover techniques, the consensual recordings.”
To date, Cunningham is the only Member to be officially charged in any of the ongoing corruption probes, but at least three others — DeLay, Ney and Jefferson — have been cited in plea agreements by former subordinates. And there’s evidence that several more are in the crosshairs of federal prosecutors, including two more House appropriators, Reps. John Doolittle (R-Calif.) and Alan Mollohan (D-W.Va.).
But the tenor of these federal investigations is increasingly catching the attention of lawmakers and criminal defense lawyers in Washington.
Widespread speculation on whether Cunningham was ever wearing a wire himself — as was reported in Time Magazine earlier this year but then denied by his lawyer — had some lawmakers on edge, particularly the idea that he could have been on the House floor or in one of the GOP Conference meetings recording conversations.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.