Attorneys who represent members during ethics proceedings say the process at the independent Office of Congressional Ethics is flawed and should be changed.
In letters sent to the House Ethics Committee, a recent editorial and interviews with CQ Roll Call, members of the political defense bar have said their clients have scant information about why they are being investigated, are provided with little opportunity to meaningfully respond and agree to be interviewed at their own risk.
“I think some of it is legitimate and some of it is sour grapes,” said Melanie Sloan of the watchdog group Citizens for Responsibility and Ethics in Washington.
The OCE was created by the House in 2008 as a fact-finding entity that reviews possible misconduct. The office conducts its investigations in two stages: a 30-day preliminary review followed by a 45-day second-phase review that can be extended an additional two weeks. At that point, it sends the case to the House Ethics Committee with a recommendation to either review it further or dismiss it. The committee ultimately decides whether any violation of House rules or law has occurred and can levy appropriate sanctions.
There is no equivalent body for the Senate.
“The OCE’s rules are consistent with the highest standards of any respected investigative entity. We have a proven record of protecting both the integrity of the process and the rights of the individuals under investigation,” OCE Staff Director and Chief Counsel Omar Ashmawy said in a statement.
Attorneys who have represented clients during OCE proceedings say they see problems at every stage of the process.
When the office begins a preliminary probe, the lawmaker or staffer in question receives only “two to four very broad sentences about what they’re looking at,” Patton Boggs attorney William McGinley said. It could be a general area of inquiry (campaign finance, misuse of official resources), or it could provide additional details (a recent trip, campaign disbursements).
As the review proceeds, those under investigation are not told which witnesses are being interviewed or what documents are being reviewed, nor are they given further details about the OCE’s case. Attorneys say this does not give them enough information to prepare their clients for a voluntary but open-ended interview, which in turn makes them less likely to comply. When the second-phase review is complete, a lawmaker under review knows on which day the OCE board will vote to refer the case for further review or dismissal, but not on what evidence the referral will rely.
“The OCE takes a very restrictive interpretation of what information can be disclosed to a respondent,” Perkins Coie attorney Karl Sandstrom said. “They should be able to fully disclose to a respondent the matter that they are investigating, the evidence — including documents — that they are relying upon to proceed with the investigation, and it should be done before requesting that a member be interviewed. The rules should not be understood to prevent that.”
Sloan likened the OCE’s fact-finding process to that used by a grand jury, which decides whether there is enough evidence to proceed to a trial after a confidential review. Information disclosed in the beginning stage of an OCE probe could provide the defense with a tactical advantage.
“Targets are not generally told they are targets,” Sloan said.
Rep. Elijah Cummings, D-Md., right, hugs Harold Schaitberger, General President of the International Association of Fire Fighters, after the Congressman spoke at the IAFF's Legislative Conference General Session at the Hyatt Regency on Capitol Hill, March 9, 2015. The day featured addresses by members of Congress and Vice President Joe Biden.