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Davidson: OCE Draws Inferences Against Third Parties

I have a question about investigations by the Office of Congressional Ethics. I’ve read stories about OCE investigations of members where it appeared that the OCE used a witness’s refusal to cooperate with the investigation against the member being investigated, even though the member had no control over the witness’s refusal to cooperate. This made no sense to me. Why should a member be penalized for someone else’s refusal to cooperate with an investigation?

A. This is a great question, as it has come up in several recent investigations and goes right to the heart of the authority of the OCE, which the House created in 2008 to review and filter complaints of misconduct by House members and staffers to determine if they warrant referral to the House Ethics Committee.

Anyone can submit allegations of member misconduct to the OCE. When the OCE receives allegations, it first determines if there is “reasonable cause” to believe them, in which case it conducts a “preliminary review.” If through that review the OCE concludes there is “probable cause” to believe the allegations, the OCE conducts a secondary review, which is a more in-depth investigation, often involving witness interviews and collection of relevant documents. After a secondary review, the OCE recommends to the Ethics Committee either that the matter requires the committee’s review or that it should be dismissed. At this stage, the OCE typically prepares a report, which the law says should contain the OCE’s findings of fact as well as a description of the information it was unable to obtain and why it was unable to obtain it.

Your question is about a “negative inference” described in several recent OCE reports that the OCE takes when a witness does not fully cooperate with an investigation. The Ethics Committee recently published a report by the OCE of its 2012 investigation of allegations of misconduct by Rep. Bill Owens, D-N.Y. At issue was whether agents acting on behalf of the government of Taiwan were impermissibly involved in sponsoring or planning a trip that Owens and his wife took to Taiwan in December 2011. According to Owens, the trip was not paid for by the Taiwanese government or its agents but rather by a private entity, the Chinese Culture University, which the law allows. As soon as Owens learned of any question regarding the trip, he fully reimbursed the university, thereby paying for the trip himself.

Owens and his staff fully cooperated with the OCE’s investigation. However, some witnesses from whom the OCE requested information did not. The OCE’s report lists these witnesses and states that it drew negative inferences as a result of the witnesses’ failure to cooperate.

Owens’ legal counsel, Brian Svoboda, took issue with the negative inferences in a letter to the Ethics Committee. “The OCE bases its recommendation largely on the fact that other parties did not cooperate with the investigation,” said the September 2012 letter, “wrongly imputing this lack of cooperation to Representative Owens.”

“The suggestion that Representative Owens somehow should be held responsible for non-responses by independent institutions ... should raise red flags for the entire Committee on Ethics,” the letter continued.

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