When Rep. Charlie Rangel (D-N.Y.) formally faces charges that he violated House rules in mid-November, the hearing will closely resemble a trial — including a panel of judges, prosecutors and even witnesses — with one exception: no one to represent the accused.
While the ethics committee’s adjudicatory process is modeled on the federal trial system, it is not identical, particularly when it comes to legal representation.
Unlike a federal trial, in which a defendant may request a court-appointed attorney, Members who are unable to pay for legal services may face no other choice than to represent themselves. Rangel could become his own lawyer.
“There’s no precedent or federal law that says the government has to provide a defense,” said Stan Brand, a former House general counsel who is now a defense attorney. “In the federal system, if someone proves they were insolvent, they would get court-assigned or public defender representation.”
Rangel, who won re-election Tuesday, has not publicly discussed the looming trial in recent weeks, nor has he discussed his split from Zuckerman Spaeder attorney Leslie Kiernan in October, as reported by multiple media outlets.
Rangel spokesman Emile Milne could not provide information Wednesday about whether Rangel has sought a delay to the proceedings, nor would he comment on the lawmaker’s legal representation. Kiernan did not return a telephone call asking for comment.
But whether Rangel will need to represent himself in his looming ethics trial, either by choice or by default, may not matter to the Committee on Standards of Official Conduct.
A spokesman for the committee declined to comment for this article. Ethics Chairwoman Zoe Lofgren (D-Calif.), who has authority for scheduling the proceedings, has not indicated that she will delay Rangel’s trial.
That means unless the New York lawmaker reconciles with his counsel or finds new representation, he may be forced to represent himself.
An ethics subcommittee charged Rangel in July with 13 counts of wrongdoing, including allegations that he misused federal resources to solicit donations for a City College of New York center named in his honor, accepted a rent-stabilized apartment for his campaign office, failed to pay taxes on a Dominican Republic villa and filed inaccurate financial disclosure forms. Rangel has since paid the overdue taxes.
“You have to be broke or crazy to represent yourself in that kind of proceeding, even if you’re a lawyer, under the traditional axiom you don’t do well representing yourself in your own case,” Brand said.
But Rangel, a one-time assistant U.S. attorney in New York, is not the first lawmaker to face financial difficulties in proceedings before the ethics panel.
Then-Rep. Charles Diggs (D-Mich.) appealed to the House Administration Committee for financial assistance in 1979 to provide for his legal defense before the panel, although the ethics committee had yet to accuse him of wrongdoing. At that time, Diggs was appealing a three-year prison sentence for his conviction related to a kickback scheme in his House office.
The panel ultimately rejected his request for aid, and Diggs negotiated a settlement with the ethics committee and was censured by the House. He also lost his federal appeal and resigned from the House in 1980.
Then-Rep. Dan Flood (D-Pa.) sought assistance directly from the ethics committee in 1979 to defend himself before an adjudicatory committee, asserting he had incurred significant debts during a federal trial on bribery charges, which ended in a mistrial.
The ethics committee spent two weeks attempting to assist Flood: “Every effort is being made to find appropriate counsel. ... We want the Congressman’s interest to be represented,” an ethics committee aide told Roll Call in November 1979.
The committee ultimately rejected Flood’s request to pay for an attorney, but he never faced a formal hearing before he resigned from the House in January 1980 and agreed to plead guilty to a misdemeanor charge, rather than face another trial.
More recently, then-Rep. Jim Traficant (R-Ohio) opted to represent himself in 2002 before an adjudicatory panel, but he did so after he likewise served pro se in a federal criminal trial, during which he was convicted on corruption charges. Traficant was subsequently expelled from the House.
But Charles Tiefer, a professor at the University of Baltimore School of Law who has previously served in the House and Senate general counsel’s offices, advised against drawing comparisons between Traficant’s flamboyant if unsuccessful performance and a potential Rangel self-defense.
Traficant “didn’t have a snowball’s chance in the Sahara after he lost in court,” Tiefer said. “Charlie Rangel is not in the same situation.”
Moreover, Tiefer suggested most Members, unlike Traficant, would not relish having to defend themselves.
“It’s true that an ethics committee proceeding is less technical than a court proceeding. But it’s still a high-powered confrontation over evidence, which a Member of Congress would not want to face without legal representation,” Tiefer said.
“We all know that the third ‘Miranda warning’ says to someone arrested by the police, ‘If you cannot afford an attorney, one will be provided for you,’” he added. “Given the seriousness for the future representation of his district ... [and] that he was just re-elected, Mr. Rangel should at least get the protection that would be given to anyone arrested anywhere in the country for almost anything.”
According to his campaign finance records, Rangel’s re-election committee and political action committees have spent more than $2.5 million on legal fees since mid-2008, when he first called for an ethics inquiry into allegations over his fundraising efforts for a New York City College center bearing his name.
But in an August speech on the House floor, Rangel acknowledged that he faced difficulty keeping up with his legal bills and suggested he was seeking an arrangement for his primary attorney to continue on a pro bono basis.
“I can’t afford to be represented by counsel. Each and every day the expenses build up,” Rangel said at that time. But he also appeared critical of his defense team, twice raising questions in the same speech over the number of attorneys working on his case.
“I can’t tell them that I want one and not six lawyers,” he said. Rangel’s fundraising declined sharply after he forfeited the gavel of the Ways and Means Committee in March, after the ethics panel rebuked him in an unrelated investigation into two corporate-sponsored trips to the Caribbean.
While Rangel’s campaign committee raised more than $2 million in the current cycle, it reported expenditures of more than $3.6 million and retained only $184,000 in cash on hand a few weeks before Election Day.
Even if Rangel were able to work out a pro bono arrangement, he could face limitations under House rules.
Members are permitted to establish legal expense funds to receive gifts to pay for attorney-related costs, with the approval of the ethics committee, but those accounts are governed by strict $5,000 annual limits on donations, which include pro bono legal services.
Still, government reform advocates suggested the ethics trial should proceed on its current scheduled, even if Rangel must face the charges alone.
“He’s been given ample opportunity to get an attorney and secure adequate legal services,” Public Citizen’s Craig Holman said. “This isn’t something that he couldn’t do. This is something that he chose not to do.”