Despite suffering electoral defeat at the ballot box Tuesday, several lawmakers still face the prospect that they will remain ensnared in ongoing criminal probes that could last well into their post-Congressional careers.
Reps. Curt Weldon (R-Pa.) and Katherine Harris (R-Fla.) have been embroiled in separate federal investigations, with Weldon’s connections to a lobbying firm run by his daughter and a political adviser under scrutiny, while Harris has turned over documents to investigators examining her connections to a defense contractor.
Both Weldon, who was seeking an 11th term, and Harris, who was hoping for a seat in the Senate, lost handily Tuesday.
Sen. Conrad Burns (R-Mont.), the top recipient of contributions from reputed lobbying felon Jack Abramoff and his associates, appears headed for defeat but has not yet conceded his race, which could go to a recount.
Without commenting on those specific cases, an aide at the Justice Department said Wednesday that the key focus of an investigation is the activity that might have been illegal, not a politician’s current standing with his or her constituents.
“As a general matter, the department investigates allegations of illegal conduct, which is independent of one’s title or position,” said Tasia Scolinos, a Justice spokeswoman.
Democratic and Republican lawyers said Wednesday that the loss of an elected position in no way would diminish the Justice Department’s interest in pursuing a criminal probe for actions someone took in an office that they no longer hold.
“The Justice Department doesn’t stop. They don’t really care,” Cleta Mitchell, a top GOP lawyer at Foley & Lardner, agreed.
In fact, some attorneys said the loss of an election only spells more trouble for politicians under federal investigation, prompting prosecutors to pursue more aggressively a case since the potential defendant no longer has the institution of Congress defending him or her.
“It makes prosecutors less reluctant, more aggressive. It emboldens them,” said Stan Brand of Brand & Frulla.
In addition to Weldon, Burns and Harris, Rep. William Jefferson (D-La.) is facing the increasing likelihood that he will be battling a federal probe without the aura of incumbency behind him, as Jefferson is now slated for a runoff election next month. Jefferson, who saw his home and Congressional offices raided as part of a probe into alleged bribes he took in exchange for steering contracts to firms doing business in Africa, finished first in the New Orleans-based open primary but with just 30 percent of the vote in a field with a dozen challengers.
Brand noted that a former client, ex-Ways and Means Chairman Dan Rostenkowski (D-Ill.), lost re-election in the fall of 1994 but his corruption probe continued until he pleaded guilty to two counts of mail fraud in April 1996.
It’s unclear how much the loss of a Congressional seat hurts an ex-Member still dealing with a corruption investigation. The same privileges that apply to sitting Members — such as the Speech or Debate Clause exempting much legislative work from criminal investigations — continue to apply to former Members.
But one critical element of any Member’s defense disappears, that being the ability to raise money into a campaign account that can be used to pay legal bills. “That’s a real issue for some of these guys. It gets a lot bleaker,” Brand said.
Without a campaign war chest or a Congressional legal defense fund to pay mounting legal bills, Brand said, some ex-Members are forced into caving and making a plea deal with prosecutors.
Mitchell, however, said that sometimes just the opposite might happen and instead a politician who is already out of office might lose incentive to cooperate.
“It’s much easier to scare a sitting Member. An ex-Member, they might figure: ‘I’m a former Member, what else do I have to lose,’” she said.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.