Q:
I am a former attorney for the Senate Ethics Committee. Despite having left the Senate for the private sector, I remain an “ethics junkie” and have been closely following the committee’s inquiry into Sen. Larry Craig (R-Idaho). What fascinates me most is that it all stemmed from conduct in an airport bathroom that didn’t seem to have anything to do with the Senator’s official duties. Therefore, I always considered it “the” test case of the breadth of the Ethics Committee’s jurisdiction. In light of the committee’s admonition letter to Craig, I take it that the committee asserted jurisdiction. Does this mean the committee’s jurisdiction is essentially boundless?

[IMGCAP(1)]A: Like you, what I found most interesting about the committee’s inquiry into Craig was the jurisdictional issue. Unfortunately, the committee’s admonition letter did not directly address the intriguing question you raise, and instead left open whether the committee might recognize some limits to its jurisdiction.

Craig’s attorney, Stanley Brand, first challenged the committee’s jurisdiction in a letter to the committee last September. Brand argued there was no precedent for the committee to assert jurisdiction over what he called “a misdemeanor for disorderly conduct wholly unrelated to the performance of official duties.” A review of the history of sanctions for improper conduct, the letter continued, established that “the Senate has exercised jurisdiction only in circumstances involving the performance of official duties or actions implicating a Member’s office.” Brand urged the committee to end its inquiry “to avoid creating precedence for the filing of future complaints over purely personal conduct unrelated to the performance of official Senate duties.”

Wilson Abney, who worked as Ethics Committee counsel and staff director from 1980 to 1992, told Roll Call at the time: “I am not aware of any case in which a Senator was investigated [by the Ethics Committee] because he or she was alleged to have violated a law and there was no nexus between the conduct and the Senator’s Senate service.”

Thus, the Craig inquiry appeared to set up resolution of a fundamental question: Does the committee have jurisdiction over a Senator’s conduct that does not violate a specific Senate rule and is unrelated to official duties?

Unfortunately, the committee’s letter did not squarely answer this question. First, the committee admonished Craig for appearing to use his official position to influence the arresting officer. The committee stated that, following his arrest, Craig showed the officer a business card identifying himself as a Senator and asked: “What do you think about that?” The committee concluded he knew or should have known that a reasonable person could view his action as an improper attempt to use his position as a Senator to receive special treatment. (Lesson: It’s best to avoid flashing Senate business cards not just to police officers but also to judges, hostesses at crowded restaurants, and anyone else who reasonably could view the gesture as an improper attempt to gain special treatment.)

Second, the committee stated that Craig violated the Code of Ethics for Government Service by attempting to withdraw his guilty plea. The committee stated: “it appears you are attempting to withdraw your plea in significant part because your initial calculation that you could avoid public disclosure … of this matter by pleading guilty proved wrong.” This, the committee concluded, was an “attempt to evade the legal consequences of an action freely undertaken,” which was contrary to Paragraph 2 of the Code, which requires Senators “never to be a party to … evasion” of federal and state laws and regulations. (Lesson: Even where available, don’t file a legal motion the committee might construe as an attempt to evade the law?)

Finally, the committee stated that by using his campaign funds to pay for his legal defense without first obtaining permission from the Ethics Committee, Craig had committed a technical violation of Senate Rule 38.2, which prohibits conversion of campaign funds for personal use. According to the Ethics Manual, Rule 38.2 does not prohibit the use of campaign funds for legal expenses that are incurred in connection with official duties. In Craig’s case, however, the committee did not reach the issue of whether his expenses qualified as being in connection with official duties. Instead, the committee admonished Craig because he did not obtain its approval before using campaign funds for legal expenses, as the manual requires. (Lesson: If the manual says to ask first, ask first.)

In sum, the committee admonished Craig for what it construed to be official conduct: giving the appearance of using an official position to gain special treatment, evading the law by attempting to withdraw a freely given guilty plea, and using campaign funds for legal expenses without obtaining the committee’s approval. This leaves open the question of whether it ever would assert jurisdiction over purely personal conduct, unconnected to official duties, which, going back to your original question, could in effect make its jurisdiction boundless. Ultimately, if a situation arose in which the committee wanted to assert jurisdiction over purely personal conduct, I suspect that it probably would — which is different from saying it should.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.