Hurdles Confront Visclosky Probe

Posted June 1, 2009 at 6:07pm

Federal investigators examining Rep. Peter Visclosky’s (D-Ind.) ties to a now-defunct lobbying firm could face constitutional hurdles if they hope to examine how earmarks were doled out to the firm’s clients.

The Indiana lawmaker acknowledged Friday that federal investigators issued subpoenas last week for his Congressional offices in Washington, D.C., and Merrillville, Ind., in addition to subpoenas issued in early May to his campaign committee and his leadership political action committee, Calumet PAC, as part of an ongoing grand jury probe into a former lobbying firm, PMA Group.

Although several aides were subpoenaed, Visclosky told the Chesterton Tribune he had not been contacted by the Justice Department.

It is not known what information Justice Department officials are seeking from Visclosky’s offices, but to date it appears the agency’s investigation is targeting the former PMA Group and whether the firm used straw man contributions to funnel campaign funds to favored defense appropriators.

The firm leveraged close ties to those lawmakers to secure earmarks for an expansive client list and vault into the top ranks of the city’s lobbying firms, pulling in more than $100 million in the past decade.

But the firm collapsed earlier this year following the revelation that federal agents raided its offices in November.

Now, as the Justice Department turns its attention to Visclosky’s offices and staff, federal investigators could face challenges in obtaining information, particularly if the investigation is focused on the earmark process.

The Constitution’s Speech or Debate Clause protects Members of Congress from prosecution for legislative activities, whether conducted personally or by their aides, who have been defined by the courts as an extension of the lawmakers themselves.

“Those probing the Congressman will not be able to get close to his discussions about legislation or appropriations,— said Charles Tiefer, a former House general counsel who now teaches at the University of Baltimore School of Law.

“Even though the asserted intent of the investigators is only to find out about campaign contributions,— Tiefer said, “they have no license to touch the electronic or documentary treatments in the Congressman’s office of his supporting provisions in legislation or appropriations.—

Such protections would also include the earmark process itself, since the selection and writing of earmarks is a legislative activity.

“One thing I think is pretty clear is the internal deliberations about the earmarks inside the Congress, between the staff and the Member or the committee and the Member, I think are clearly protected,— said Stan Brand, a former House general counsel who is now a white-collar defense attorney.

Even communications with lobbyists or other non-Congressional entities about earmarks and the appropriations process could potentially be withheld from investigators if a Member claimed constitutional rights.

“Clearly, the Speech or Debate Clause contemplates that Members will use both formal or informal means to gather information in connection with the legislative process, so there would be contacts with lobbyists that would be protected,— Brand said.

Rob Walker, an attorney with Wiley Rein who previously served as chief counsel of the House ethics committee and then the Senate Ethics Committee, echoed that explanation, stating that letters requesting earmarks could be viewed as “motivation for legislation— and therefore protected from prosecution.

“If you get a letter or there is conversation or communication in connection with an earmark that is eventually the subject of legislation, I think that’s covered,— Walker said.

While federal investigators would likely have less difficulty gleaning information from Visclosky’s campaign committee or political action committee, which are not covered under the Speech or Debate protections, much of that information may already be public.

“I think the general lines would be that something done outside the legislative process, in the electoral arena, generally would not be covered: fundraisers, donations, solicitations to donors, all this stuff that would occur as a part of a campaign,— Brand explained.

“The problem here, in my mind, is what about that gets them any closer to proving anything vis-à-vis a Congressman than they already have available to them,— he added.

Walker noted it would be unusual for a PAC to possess protected documents or records.

“It’d be tough to view the Speech or Debate Clause as covering records of the PAC, in so far as the clause generally prohibits inquiry only to things said or done in the House in the performance of official duties or the motivation of those acts,— Walker said.

“You wouldn’t expect [the PAC] to have records of official activities, of legislative activities, of the motivations for those activities,— he added.

Nonetheless, if information regarding legislative activity did ultimately appear in files maintained by a campaign office or political action committee, it could still fall under Speech or Debate protections.

“The fact that it turns up in another place doesn’t deny it protection. You still have to go through the analysis and determine, What is it?’— Brand said.

Visclosky, who has requested permission from the Federal Election Commission to use campaign funds for his legal defense, indicated last week that he will invoke Speech or Debate protections, stating that his attorneys at Steptoe & Johnson will review the document requests to determine which should be handed over and which are constitutionally protected.

Visclosky, an ally of Appropriations Subcommittee on Defense Chairman John Murtha (D-Pa.), maintained close ties to PMA, which hired his chief of staff in 2004. PMA employees have given Visclosky about $270,000 in campaign contributions since 1989, according to the Center for Responsive Politics.

Over the past two years, PMA and its clients gave Visclosky about $370,000, and during the same time period, the Indiana Democrat steered about $33 million in taxpayer-funded projects to clients of the firm, according to Taxpayers for Common Sense.

But Visclosky has since sought to distance himself from the firm, making no requests for earmarks in this year’s defense spending bill for PMA’s former clients and pledging to return $18,000 in campaign donations its employees contributed over this year. Visclosky has also joined a handful of Democrats breaking party ranks to support a Republican-led attempt to force an ethics committee investigation into PMA and its ties to lawmakers.