Meredith McGehee’s Dec. 6 Guest Observer (“Why Subpoena Power is Key to Real Ethics Reform”) argues that without subpoena power, the new Office of Congressional Ethics proposed by Rep. Mike Capuano’s (D-Mass.) task force will be ineffective and powerless to undertake the initial investigation responsibilities that would be imposed upon it.
First, it must be remembered that the Office of Congressional Ethics is not intended to be a substitute for the plenary adjudicative function that would still take place in the Committee on Standards of Official Conduct. It is designed to break the logjam that has occurred over the past decade in getting any complaint resolved in the intense partisan atmosphere for the House given a committee that is split evenly by party.
The Office of Congressional Ethics will not be the toothless tiger that McGehee asserts it will be for several reasons: It will have the ability to gather documents and testimony that are publicly available or voluntarily obtained. The case of ex-Rep. Duke Cunningham (R-Calif.) was not initiated pursuant to a law enforcement subpoena; it was uncovered by a reporter’s examination of public real estate records that revealed a corporation owned by a defense contractor bought Cunningham’s house.
Secondly, the Department of Justice often pursues preliminary inquiries into public corruption first without resorting to grand jury subpoena. Indeed, under the old independent counsel statute (now lapsed), the department did not believe it could cause subpoenas to be issued before it made statutorily mandated determinations concerning whether “credible evidence” of a commission of a crime by a covered official had occurred. The department was nevertheless able to gather sufficient evidence informally to permit it to recommend to the attorney general that a court-appointed independent counsel be sought.
The Office of Congressional Ethics would work much the same way and in the event that it cannot obtain enough evidence to determine whether to recommend a full investigation to the ethics committee, that fact, in itself, will make it difficult to bury meritorious cases, as McGehee fears.
McGehee also mistakenly posits that subpoena power is necessary because without it, Members and staff will thumb their nose at the office. First, the subpoena power is more important vis-à-vis outside third parties than it is with respect to Members, whose failure to cooperate will certainly be a factor in the office weighing a recommendation to investigate. In addition, failure to cooperate with the office presents the same risks to a respondent Member that resisting the full committee would. In addition, Congressional subpoenas are not self-enforcing and as the recent Judiciary Committee struggle to obtain White House testimony illustrates, can be a protracted and cumbersome process without clear resolution and no better an alternative than the moral or political suasion that convinces many people to cooperate in an investigation.
McGehee too easily dismisses the sanctions that are available without resort to subpoena power, such as the false statements, perjury and obstruction statutes that can be brought against respondents and witnesses. Indeed, in the case of former Speaker Newt Gingrich (R-Ga.), one of the charges alleged by the committee was that inaccurate information had been knowingly provided to the committee (which had been provided voluntarily, not by subpoena).
More recently a witness before a Senate committee was convicted and sentenced to incarceration for giving false statements to the panel and thereby obstructing an inquiry even though he was not under subpoena or sworn. There are serious consequences to committing these offenses even in response to informal requests from the office and are hardly “dodges” as McGehee asserts.
Even without subpoena power, the Office of Congressional Ethics proposed by Capuano’s task force represents a substantial step forward in breaking the investigative deadlock experienced over the past decade and will ensure disposition of meritorious allegations even without resort to subpoenas.
Stanley Brand is a former House general counsel and has represented dozens of witnesses and Members before the House and Senate ethics committees.
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.