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Hurdles Confront Visclosky Probe

Federal investigators examining Rep. Peter Visclosky’s (D-Ind.) ties to a now-defunct lobbying firm could face constitutional hurdles if they hope to examine how earmarks were doled out to the firm’s clients.

The Indiana lawmaker acknowledged Friday that federal investigators issued subpoenas last week for his Congressional offices in Washington, D.C., and Merrillville, Ind., in addition to subpoenas issued in early May to his campaign committee and his leadership political action committee, Calumet PAC, as part of an ongoing grand jury probe into a former lobbying firm, PMA Group.

Although several aides were subpoenaed, Visclosky told the Chesterton Tribune he had not been contacted by the Justice Department.

It is not known what information Justice Department officials are seeking from Visclosky’s offices, but to date it appears the agency’s investigation is targeting the former PMA Group and whether the firm used straw man contributions to funnel campaign funds to favored defense appropriators.

The firm leveraged close ties to those lawmakers to secure earmarks for an expansive client list and vault into the top ranks of the city’s lobbying firms, pulling in more than $100 million in the past decade.

But the firm collapsed earlier this year following the revelation that federal agents raided its offices in November.

Now, as the Justice Department turns its attention to Visclosky’s offices and staff, federal investigators could face challenges in obtaining information, particularly if the investigation is focused on the earmark process.

The Constitution’s Speech or Debate Clause protects Members of Congress from prosecution for legislative activities, whether conducted personally or by their aides, who have been defined by the courts as an extension of the lawmakers themselves.

“Those probing the Congressman will not be able to get close to his discussions about legislation or appropriations,” said Charles Tiefer, a former House general counsel who now teaches at the University of Baltimore School of Law.

“Even though the asserted intent of the investigators is only to find out about campaign contributions,” Tiefer said, “they have no license to touch the electronic or documentary treatments in the Congressman’s office of his supporting provisions in legislation or appropriations.”

Such protections would also include the earmark process itself, since the selection and writing of earmarks is a legislative activity.

“One thing I think is pretty clear is the internal deliberations about the earmarks inside the Congress, between the staff and the Member or the committee and the Member, I think are clearly protected,” said Stan Brand, a former House general counsel who is now a white-collar defense attorney.

Even communications with lobbyists or other non-Congressional entities about earmarks and the appropriations process could potentially be withheld from investigators if a Member claimed constitutional rights.

“Clearly, the Speech or Debate Clause contemplates that Members will use both formal or informal means to gather information in connection with the legislative process, so there would be contacts with lobbyists that would be protected,” Brand said.

Rob Walker, an attorney with Wiley Rein who previously served as chief counsel of the House ethics committee and then the Senate Ethics Committee, echoed that explanation, stating that letters requesting earmarks could be viewed as “motivation for legislation” and therefore protected from prosecution.

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