Some House Republicans are growing uneasy with the increasingly aggressive tactics being employed by the Justice Department in its burgeoning corruption probe of Congress, questioning whether federal investigators have gone too far in their techniques.
While Congress has virtually no recourse, some Members said last week that the Justice Department’s probe had begun to irk them because of reports of wiretaps, searches on Congressional grounds, open-ended document requests and demands to interview committee aides.
House Administration Chairman Vernon Ehlers (R-Mich.), whose purview includes oversight of the House grounds and Capitol Police, said last week a “variety” of Members had approached him in recent weeks to voice their concerns, including several who have no public connection to any of the investigations.
“A number of Members are very concerned about the way the Justice Department is investigating,” Ehlers said, adding that the general impression among some Members is that prosecutors want to “get” a Congressman.
“There’s a feeling that this would be a notch in their belt if they could get a Congressman,” Ehlers said.
Rep. Dan Lungren (R-Calif.), a member of the Judiciary Committee and former California attorney general, said he was growing concerned that some prosecutors and the media were viewing the simple act of accepting campaign contributions from donors with similar legislative agendas as a criminal act.
With Members “put into a situation” in which they need to constantly raise money, Lungren noted that each party has found natural bases of donors who support each other’s agendas. But that, he said, doesn’t add up to the criminal level of a “fairly delineated quid pro quo.”
“If we go so far as to say you can only accept funds from people who disagree with you, we’re in a crazy spot,” Lungren said.
The grumbling about Justice comes as federal prosecutors have ratcheted up several of their corruption investigations and deployed tactics that have caught the eye of Capitol Hill.
Last summer, federal investigators searched the car of Rep. William Jefferson (D-La.) while it was on Congressional grounds. The Justice Department has been investigating whether the New Orleans lawmaker took bribes while helping contractors obtain work from the U.S. Army and African nations, securing a plea agreement from a contractor earlier this month alleging he gave $400,000 to Jefferson’s family.
Then court documents unveiled earlier this month stated that one of the witnesses helped investigators by recording telephone conversations and face-to-face meetings with Jefferson.
In their wide-ranging probe of the bribery conspiracy orchestrated by former lobbyist Jack Abramoff, the Justice Department recently took plea agreements from former aides to Reps. Tom DeLay (R-Texas) and Bob Ney (R-Ohio) on breaking the provision that forbids lobbying former House and Senate bosses for one year after departing Capitol Hill, a law that rarely had been enforced. The ex-aides also pleaded guilty to rarely prosecuted crimes involving giving illegal gifts to staffers and Members. In exchange, they are expected to receive lighter prison sentences for cooperating with Justice.
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.
“If I saw something like that, I’d have some real problems with that,” Lungren said, cautioning that so far he’s seen nothing that crossed that line.
Some political lawyers think that such a move by Justice would sufficiently violate the separation-of-powers doctrine, tilting the balance and giving too much power to the executive branch.
Bob Bauer, a top Democratic lawyer at the firm Perkins Coie, disavowed the notion of wiring a Congressman as soon as the Cunningham report first emerged in January, dismissing it as a dramatic prosecutorial overreach, whether it be a Member wearing a wire to aid the prosecution of other Members or against crooked defense contractors.
“Transforming a Member into a Manchurian Congressman, under the control of investigators, certainly threatens the relationship between the legislature and the executive branch, which is one of some balance and distance and maintained only with difficulty,” Bauer wrote on his firm’s Web log.
William Canfield, a former counsel to the Senate Ethics Committee in the 1980s, said that, at a minimum, the House needs to stand up to the U.S. Attorney’s office in San Diego, denying the request to see years’ worth of documents related to committee work and interviewing current and former staffers.
He said that such a broad request is “coming mighty close to intervening in the constitutionally protected environs of the Congress.”
“There comes a point in time when you tell the department: If you want to fight about it, issue a subpoena and we’ll fight about it in court,” Canfield said.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.