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.
One point on which the watchdog group and the defense attorneys agree is the need for additional interview parameters, which would enable lawmakers to cooperate without being exposed to what Sandstrom characterized as an open-ended “fishing expedition” in a letter to the Ethics Committee. The letter concerned an OCE case related to his client, former Rep. Silvestre Reyes, D-Texas.
“No one is going to do that. It’s too risky. If documents are going to be discussed, you should be able to prepare for that. The OCE asks people to come in and talk ... but makes it difficult for people to respond, then takes a negative inference from that,” Sloan said.
“But I also think the OCE should have subpoena power,” she added.
The House did not give the office the power to compel testimony and subpoena documents over the objections of some of the government watchdog groups that insisted it would be necessary for it to function.
Attorneys also say they would like to see clearer published definitions for what the OCE considers to be exculpatory evidence and a set timeline for when such information will be shared with the subject of the probe, though the office confirmed it has internal standards and definitions related to both to ensure continuity from case to case.
“A number of the people who practice in this area find it to be a very elusive definition that wouldn’t comport with their own understanding of what’s exculpatory,” Sandstrom said.
Attorneys say enough time has passed since the office’s creation that it may be time to review how it operates, saying that even successful institutions at times need tweaks.
“There are flaws in the system,” McGinley said.
The House last week reauthorized the OCE to continue its work in the 113th Congress.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.