DOJ Ends Mollohan Probe; Is Ethics Next?

Posted January 26, 2010 at 6:21pm

The Justice Department confirmed Tuesday that it has closed out a four-year probe of
Rep. Alan Mollohan (D) without taking action against the West Virginia lawmaker, but
Mollohan could still face scrutiny from the House ethics committee.

A spokesman for the U.S. Attorney’s Office for the District of Columbia said
the investigation ended last Friday but declined to provide specific details about the
inquiry.“I can confirm that we’ve closed the investigation and that no
charges have been brought,— said spokesman Ben Friedman.

Although the Justice Department has never publicly confirmed the focus of its probe,
the query began in 2006, after a conservative watchdog group filed a complaint over
earmarks Mollohan procured for five West Virginia nonprofit groups run by friends and
campaign contributors, some of whom participated in lucrative real estate deals with
the lawmaker.

Mollohan, who has denied wrongdoing, welcomed the investigation’s termination
in a statement issued to media outlets Tuesday.

Mollohan’s office did not provide Roll Call with a copy of the statement.

While the Justice Department has terminated its inquiry, however, it is not known
whether the House ethics committee, formally known as the Committee on Standards of
Official Conduct, will conduct its own review of Mollohan.

According to a confidential ethics document leaked in October, the ethics committee
appeared to be conducting its own investigation. That document, dated July 27-31,
indicated the Justice Department had requested the panel defer its probe for an
unspecified period of time.The ethics committee has never confirmed the authenticity of
that leaked document, or that it was ever investigating Mollohan.

The committee declined comment for this article, and Friedman declined to discuss
whether the Justice Department has contacted the ethics committee about the Mollohan
investigation.

A Mollohan spokesman did not respond to e-mail or telephone requests about the
ethics committee’s actions.

According to individuals familiar with the House ethics process, an internal
investigation following a Justice Department investigation — even one that ended
without action — would not be unusual.

Rob Walker, an attorney with Wiley Rein who was previously a top aide to the Senate
and the House ethics committees, noted that even when the Justice Department and a
Congressional ethics committee review the same individual, investigators may examine
different aspects of alleged violations.

“There are a number of factors involved: There are different standards, rules
and potential alleged violations under Senate or House ethics rules,— Walker
said, emphasizing he was talking about the ethics process generally. “Those are
independent of any statutory crimes that may have allegedly been or may be under
investigation by criminal authorities in a case, so they’re just completely
different standards that both DOJ and ethics committees look at.—

“It’s also important to keep in mind that the standard of proof … for
an ethics matter in either the House or the Senate, is different and lower than the
standard of proof in a criminal prosecution,— Walker added.

Walker noted that while federal prosecutors examine statutory violations, in any
matter the House may opt to review allegations under wide-ranging standards that bar
Members from “reflecting discredit— on the chamber. That standard can be
applied “even if the Department of Justice or criminal authorities have declined
to pursue specific criminal charges,— Walker said.

Stan Brand, a former House general counsel, said it would be unlikely the ethics
committee would simply dismiss a matter because the Justice Department had done so, but
they would take the department’s action seriously.

“Of course there’s a different standard of proof and there are different
rules, however … it’s a determination by the chief law enforcement agency that
there’s nothing there from a legal standpoint, which isn’t to be sneezed
at,— Brand said.

Brand recalled the ethics investigation of then-Rep. William Boner (D-Tenn.) in the
mid-1980s, which House officials suspended in 1986 at the request of the Justice
Department. The inquiry continued the following year, after federal investigators
determined it would not seek an indictment.

The ethics committee released its report in December 1987 concluding that the
lawmaker had violated House rules.

While the Justice Department and Congressional ethics investigators do not conduct
joint investigations — which could raise separation of powers issues — the
organizations may informally request evidence from each other. But federal prosecutors
could be prohibited under grand jury secrecy rules from providing

Congressional investigators with certain information.

In the meantime, Mollohan spokesman David Herring said the West Virginia lawmaker
planned to issue a letter to Speaker Nancy Pelosi (D-Calif.) and Appropriations
Chairman David Obey (D-Wis.), informing them that he will resume responsibility for the
Justice Department budget as chairman of the Appropriations Subcommittee on Commerce,
Justice and Science.

Mollohan had recused himself from those duties when he became the subcommittee
chairman in 2007.

Neither spokesmen for Pelosi nor the Appropriations panel could confirm receipt of
those letters late Tuesday.