With members of the House Ethics Committee back in Washington, pressure is mounting for the secretive panel to reconsider its decision not to release findings from the Office of Congressional Ethics probe into all-expense-paid trips to Azerbaijan taken by 10 members of Congress in 2013.
"What's so troubling about this is it's a case where the conduct of the committee itself is a central issue," said Leo Wise, an attorney who managed the OCE's operations during its first two years. Wise, a former OCE staff director and chief counsel, speculated the findings might reveal the committee's own failure to vet the nonprofits that footed the bill for the foreign travel, which he said are "potentially, the most embarrassing facts about their process." On July 31, Ethics Chairman Charlie Dent, R-Pa., and ranking member Linda T. Sánchez, D-Calif., announced the committee had closed its review of allegations the members accepted gifts and airfare that were secretly paid for by Azerbaijan's state-owned oil company, and cleared the lawmakers of wrongdoing. They sent to the Justice Department for further review inconclusive “evidence of concerted, possibly criminal" efforts to mislead House travelers — and the committee — about Azerbaijan's sponsorship of the trip.
Critics question whether the full findings from the OCE would shed light on the role the committee played in approving the trips. Records, first reported by USA Today , show the committee failed to enforce House rules that required members and staffers to obtain the committee’s written approval for privately sponsored travel 30 days prior to departing.
“The Ethics Committee has said that the members did not act improperly, in part because they were given the go-ahead. So where did the Ethics Committee process break down?” asked Daniel Schuman, policy director at Demand Progress. “Why did the Ethics Committee say this travel was OK when it wasn’t? Was there an issue of omission?”
The 28-page report states the committee approved the trips, connected to a conference in Baku, Azerbaijan, titled "U.S.-Azerbaijan: Vision for the Future," based on the travelers' submissions. Those included forms signed by Kemal Oksuz, chairman of the two nonprofits alleged to have secretly coordinated with the state-owned oil company to cover the cost of the travel.
“Nothing in those submissions gave the Committee reason to doubt the truth or accuracy of the purported sponsors' representations regarding the sources of the Trips' funding,” the committee report states. “However, more than a year after the Trips occurred, questions arose about whether the Trips complied with the requirements for privately-sponsored officially-connected travel.”
Oksuz invoked his Fifth Amendment rights to refuse to testify, according to the report. He also refused to comply with a subpoena for documents issued to him by the committee. The committee speculates an anonymous leak of the OCE's findings to The Washington Post impeded its investigation, including efforts to get Oksuz to cooperate.
On March 4 — 10 weeks before the leak — Dent and Sánchez sent a letter to the OCE formally requesting the agency cease its review of the trips, launched on Jan. 29, and refer the matter immediately to the committee. But the OCE did not immediately comply.
Craig Holman, a government affairs lobbyist for Public Citizen who was part of the push to establish the independent ethics office in the 110th Congress, said he feared the committee "may be trying to bury" the case, involving nine current members — six Democrats and three Republicans.
Holman emphasized that the House created the OCE to provide an independent review of alleged ethics violations, but the committee "tried stepping in late, once the investigation was in full fruition." He argues the committee's order may not have been valid, and its subsequent decision to withhold the findings may have violated House rules.
But Dan Schwager, who stepped down as staff director at the House Ethics Committee in 2013 and now practices at the D.C. offices of Miles & Stockbridge PC, defended the cease-and-refer request. Schwager said the rule is meant to avoid duplication, not only for the two investigative bodies but also for the subjects of the investigation. Competing statements or conflicting investigative techniques that alert witnesses to evidence they didn't know existed are among the risks.
"Every investigative process does need to leave a little bit of fairness in mind for the subject," Schwager said in an interview. Hiring an attorney is costly, but reasonable, because OCE transcripts will eventually be published. Investigators may ask loaded questions and "any little misstep or miscue will be interpreted as a false statement," Schwager said.
The report that accompanied the 2008 creation of the OCE, produced by an ethics task force led by Rep. Michael E. Capuano, D-Mass., explicitly contemplated ethics investigations that are not yet public, and cease-and-refer orders. Under certain circumstances, the committee could choose to establish an investigative subcommittee after requesting the OCE cease and refer an ethics matter.
Schwager said the watchdogs' arguments are predicated on an idea that the Ethics Committee wasn't actually investigating Azerbaijan travel when it asked the OCE to hand over their case. "The committee is not out there trying to quash OCE's materials," he said.
Neither the OCE nor the Ethics Committee would comment on Azerbaijan travel. Individual members of the committee, approached by CQ Roll Call, said they could not comment on the specifics of the case, including the cease-and-refer order.
Rep. John B. Larson, D-Conn., said he had "no reason to doubt" the committee's commitment to transparency.
When members of the Ethics Committee voted on July 29, they unanimously agreed to release one-page summaries from the OCE of the allegations involving Democratic Reps. Yvette D. Clarke of New York, Danny K. Davis of Illinois, Rubén Hinojosa of Texas, Sheila Jackson Lee of Texas, Michelle Lujan Grisham of New Mexico and Gregory W. Meeks of New York, plus Republican Reps. Jim Bridenstine of Oklahoma, Leonard Lance of New Jersey, and Ted Poe of Texas.
The committee decided not to release other materials, the report stated, because those contain evidence of possible criminal misconduct and disclosure could interfere with a potential Justice Department investigation.
Wise said the situation is "Orwellian." The report acknowledges a breakdown, without any kind of accounting of what happened. "Not that it doesn't exist, but that they are sitting on it," he added.
"The genius of the OCE design was that transparency would put pressure on political actors to do the right thing," Wise said. Withholding the report, deprives the public and the institution of that "action-forcing mechanism."
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