When the House ethics committee opted to admonish Ways and Means Chairman Charlie Rangel (D-N.Y.) last week, it also highlighted limitations in its process for sanctioning Members, legal experts and former Congressional aides said.
The House committee has availed itself notably in the Rangel matter and previously in the [then-Rep. Tom] DeLay [R-
Texas] matter of the opportunity to admonish Members, even though strictly speaking the rules dont give them that authority, said Rob Walker, an attorney with Wiley Rein who served as a top aide to the Senate and the House ethics committees.
In its decision Friday, the Committee on Standards of Official Conduct ruled that two Caribbean trips involving six Members violated House rules because the events secretly received corporate funding.
Although it excused five of the Members who attended while still requiring they repay the cost of the trip, the ethics panel admonished Rangel on the basis that his staff was aware of the conflict.
It is the intention of the Committee that publication of this Report will serve as a public admonishment by the Standards Committee of Representative Rangel, the report stated. It used identical language to chastise Dawn Kelly Mobley, a former aide to then-ethics Chairwoman Stephanie Tubbs Jones (D-Ohio).
Under the ethics committees rules, the committee may opt to sanction a Member or aide following an investigation, with punishments ranging from a letter of reproval to recommending expulsion from the House or dismissal for aides.
With respect to the sanctions that the Committee may recommend, reprimand is appropriate for serious violations, censure is appropriate for more serious violations, and expulsion of a Member or dismissal of an officer or employee is appropriate for the most serious violations, according to House ethics rules.
But Walker and other attorneys familiar with the process said that those specific punishments may only be initiated through an onerous process.
Even for the committee to issue a letter of reproval ... [it] has to go through the entire adjudicatory hearing process, Walker said.
Its cumbersome. Its a process that kind of ties the committees hands in terms of flexibility and speed with which it can approach a matter, he said.
Walker added that he supports the idea of a formalized admonishment process, noting that the Senate Ethics Committee employs such letters when it identifies a de minimis rules violation.
I understand the impulse to create this kind of response, Walker said. But it certainly seems to me that its at the least an open question as to whether or not this kind of response by the committee is authorized by its rules.
But Stefan Passantino, another former House aide who is now chairman of the political law team at McKenna Long & Aldridge, suggested the ethics committee may be permitted flexibility in its decisions.
At the end of the day, all of the House ethics rules are really a creation of the Houses own self-imposed rules, and for that reason, if the Members want to get together and they want to decide an admonishment is the appropriate sanction, they certainly have the right to do it, Passantino said.
The House ethics rules are not really as strict as a judicial criminal code where you have to have very specific violations spelled out, and if the allegation doesnt really fit within the very narrow confines of the prescribed penalty, then it cant be imposed, he added.
Although the committee has previously utilized the term admonishment in its reprimands to lawmakers including a 1995 investigation into Rep. Charlie Wilson (D-Texas) involving personal loans from his campaign committee that he failed to report on his financial disclosure forms several legal experts contend it was a 2004 ethics committee decision involving DeLay that altered its usage to a punishment, and not a mere warning.
In that decision, the ethics panel admonished DeLay and Reps. Candice Miller (R-Mich.) and Nick Smith (R-Mich.) for their conduct on the House floor during a protracted vote on the Medicare prescription drug bill.
In language similar to the Rangel decision, the ethics committee wrote at that time: It is the intention of this Investigative Subcommittee that publication of this Report will serve as a public admonishment by the Committee to Representative Smith, Representative Miller and Majority Leader DeLay regarding their conduct in this matter.
That shift in language is significant, noted Ted Van Der Meid, a former top House ethics aide now at McKenna Long & Aldridge, in part because of its potential for misinterpretation.
It does have significance, in part because the public does not understand the difference between the word admonishment as a punishment and other more traditional forms of punishment like a letter of reproval or a reprimand, Van Der Meid said.
Attorney Elliot Berke, who served as DeLays counsel at the time of the investigation, on Tuesday criticized the committees use of informal admonishments.
While it may seem that the ethics committee is doing a Member a service when it ends the process before the adjudicatory and sanction phases, the reality is that a Member who is admonished is widely, and sometimes wrongly, perceived to have violated the rules, Berke said Tuesday.
This concept of an admonishment can be unfair to the Member under investigation, especially when some sort of repayment is required, he added. The Member is forced to accept the result and pay a fine without having the ability to argue his or her case as part of the ethics process.
During the formal sanction process, counsel for both the Member and the committee submit written or oral recommendations to the ethics panel about what sanctions should be applied to the Member.
An attorney at the law firm Zuckerman Spaeder, which represented Rangel in the ethics investigation, did not return a telephone call Tuesday, but the New York Democrat criticized the ethics committees determination in a Friday statement.
The reports errors could have been avoided if the Committee had not adopted its conclusions before giving Congressman Rangel an opportunity to respond, the statement read.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.