Feb. 8, 2016

Ethics, DOJ Share Turf Carefully

When a confidential document leaked into the public sphere last week, it revealed the Justice Department is seeking to trump a House ethics investigation of Rep. Alan Mollohan (D-W.Va.). While the request offered no new insight into the Mollohan inquiry, it did shine light on the often murky relationship between House ethics officials and federal prosecutors.

The request, included in a confidential ethics committee report obtained by the Washington Post, is typical in cases in which the DOJ is engaged in its own investigation.

According to individuals familiar with the process, the working relationship between the Justice Department and the Committee on Standards of Official Conduct, commonly known as the ethics committee, is usually a cordial one, although tensions do flare.

“The conversations between Justice and the committee are difficult and strained at times because each entity has a legitimate interest in carrying out its responsibilities,” said a source familiar with the ethics committee who asked not to be identified because of the sensitive nature of the panel’s work.

“But the potential for either side, the ethics committee or the Justice Department, to inadvertently undermine the work of the other is real,” the source added.

The Justice Department and the House ethics committee operate under confidential strictures and rarely discuss their probes publicly, but former Congressional aides and ex-DOJ officials acknowledge the agencies do communicate with each other about investigations.

Rather than providing each other with regular updates, sources said, one office typically contacts the other in response to news reports about an investigation or when a witness discloses contact with investigators.

“It’s very situation-specific,” the source familiar with the ethics committee said. “Hypothetically, you can imagine that the FBI or Justice Department officials are pursuing leads or interviewing witnesses, and in the course of doing that, a witness might tell them, ‘As I explained to the House ethics committee ...’ and the Justice Department investigators, at that point, they would know.”

The Justice Department’s Office of Legislative Affairs typically handles contact between the ethics committee and the agency — organizing meetings that could include House aides and the DOJ’s Public Integrity Section, which prosecutes public corruption cases. The Attorney General’s Office is sometimes employed.

Steve Bunnell, a partner at O’Melveny & Myers and former chief of the criminal division of the U.S. Attorney’s Office for the District of Columbia, said the DOJ often intercedes in an investigation because of concerns about the “fact-gathering process.”

“One of the things you don’t want in an investigation is to have key witnesses being interviewed multiple times by different people,” Bunnell said, noting that such a process could result in multiple versions of testimony, a potential weakness in a federal prosecution.

While the Justice Department usually reaches out to the ethics panel in the early stages of such an investigation, Bunnell noted one major exception: a probe in which the DOJ employs wiretaps or other covert operations.

“They probably don’t want to ask the ethics committee to stand down because they don’t want to tip off the subject of an investigation,” he said.

But in a typical scenario, when the DOJ and the ethics panel are investigating identical or even related charges, Justice officials essentially request the House to “stand down,” he said.

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