Members Challenge OCE’s Investigations

Posted February 2, 2010 at 6:10pm

Members under scrutiny by the Office of Congressional Ethics have been highly critical of its investigators, and some privately acknowledge urging fellow lawmakers to shun the office in favor of the House ethics committee. It is not yet clear that such recommendations are hampering the OCE’s ability to investigate House lawmakers.

Although little of the OCE’s investigative work has reached the public to date — the House ethics committee continues to review at least 10 of the 12 known probes and has published two reports — the material that has surfaced has been accompanied by sharp criticisms of the OCE’s process.

The Committee on Standards of Official Conduct, commonly known as the House ethics panel, has alternately characterized the OCE’s probes as “fundamentally flawed” and “inadequate,” criticizing both its methodology and recommendations.

Letters on behalf of Members under scrutiny echoed similar skepticism about the OCE’s methodology — including its interview techniques and adherence to deadlines — at the same time seeking to fend off the allegations in question.

But OCE Staff Director and Chief Counsel Leo Wise said Monday that Members have not begun to shirk the office’s investigators en masse.

“We’ve only had one episode of total non-cooperation, and we’ve had two instances of partial cooperation,” Wise said. “We’re at more than 25 reviews. The next quarterly report will show we’ve opened a substantial number in this first quarter.”

“Members are not pulling back,” Wise added. “They are continuing to cooperate fully, and their counsel are continuing to recommend they cooperate fully.”

The House established the OCE in 2008 in an attempt to add transparency to the chamber’s ethics process and tasked the office with reviewing allegations and recommending investigations to the ethics committee.

Nonetheless, in private, some House offices that have interacted with the OCE acknowledged recently advising other lawmakers to avoid doing so.

“They’re asking whether they should even cooperate with the OCE … whether they ought to hunker down and wait for the inquiry to get kicked up to the [House ethics] committee,” said one individual familiar with the OCE’s investigative methods but who declined to be identified, citing the sensitive nature of the ethics process.

The same individual acknowledged telling other House offices “to be careful what you provide and, more likely than not, it’s more worth it to let it get kicked up to the [House ethics] committee rather than cooperate with the OCE and let them draft a report that could damage you more.”

Under House rules, the ethics committee is required to release the OCE’s report — which may include documents such as e-mails, interview summaries and other records — at the end of an up-to-90-day review period, unless it opts to open its own investigation.

Rep. Todd Tiahrt (R-Kan.) acknowledged in January that he requested the ethics committee intercede in the OCE’s investigation of his ties to the defunct lobbying firm PMA Group.

“I asked for this matter to be transferred to the Standards Committee because I respect their ability to professionally review my defense appropriations vetting process,” Tiahrt said at the time.

A source knowledgeable about the Tiahrt investigation, now under review by the ethics committee, said the request was made because of unspecified concerns about the OCE inquiry.

An OCE spokesman said last month, however, that the investigation followed standard procedures and that the ethics panel did not take over the review prematurely.

Says Who?

Among the specific criticisms lobbed at the OCE, Members and their attorneys have raised questions about the office’s interview process, which makes use of staff-written summaries — known as a memorandum of interview — rather than transcripts.

The interview method became an issue in the recent probe of Rep. Pete Stark (D-Calif.) and the tax status of his Maryland home.

In a letter to the House ethics committee rebutting the OCE’s investigation, an attorney for Stark raised doubts over the veracity of an interview with the lawmaker.

“Utilizing Rep. Stark’s statements from the Memorandum of Interview prepared by the OCE is problematic, given that the OCE counsel prepared this document from his handwritten notes of the interview with Rep. Stark,” attorney Stan Brand, a former House counsel, wrote in a Dec. 1 letter. The House panel dismissed Stark’s case.

Brand declined to discuss Stark’s case specifically but said he would advise Members or investigators to record and transcribe interviews.

“You want the best version of someone’s statement. You don’t want a side contest or trial about what they said,” Brand said.

“It won’t come as an overstatement that Members are extremely concerned about how this process has evolved and whether proper deference is being given to the protection of their rights and preservation of confidentiality,” Brand added. “The general perception is we need to be careful in how we implement this process.”

Similarly, an attorney for Rep. Sam Graves (R-Mo.) argued in a letter to the House ethics committee in 2009 that such interviews could create “erroneous impressions for the reader,” if released to the public as part of the OCE’s report.

Although the ethics committee found Graves did not violate House rules — the probe examined Graves’ involvement in inviting a witness with business ties to his spouse to testify at a Small Business Committee hearing — it did release the interviews as part of the OCE report.

In a November statement, OCE Chairman and ex-Rep. David Skaggs (D-Colo.) and Co-Chairman and ex-Rep. Porter Goss (R-Fla.) have defended the interview process as “the same procedure as numerous law enforcement agencies to memorialize the substance of interviews.”

“This is the method used … by all major federal law enforcement and the public integrity section at Justice,” Wise said Monday. He said the OCE also opted for the method because such statements — which are not signed off on by the interviewee — cannot be used in a court setting, including criminal prosecutions.

“The value of them is they contain facts, but they don’t set traps that a transcript could,” Wise said. “At the end of the day, what we’re supposed to be doing is a very practical and pragmatic fact-gathering process. We don’t do depositions.”

Nonetheless, the OCE is not prohibited from transcribing interviews, and Wise said the office has employed a court reporter in one case to date.

“If it’s something a witness objects to or requests, we’re more than happy to accommodate it,” Wise said, noting that Members are told in advance how the OCE process will work and may opt to request a transcription.

Wise added that neither Graves nor Stark objected to the process: “These were not issues that were raised in the course of the review. No one objected to that format in the course of the review.”

According to the OCE’s summary of the interview with Stark, the California lawmaker did videotape his interview.

Deadlines Panned

Members criticizing the OCE have also focused heavily on the office’s internal deadlines.

In letters to the House ethics committee, attorneys for Stark and Graves argued the OCE failed to meet its own deadlines — including time limits on the OCE’s progression from a preliminary interview through its final stage before issuing a referral to the House ethics panel.

“The OCE also ignores the explicit time periods for conducting its inquiry set forth in House Resolution 895, ultimately exceeding the review period by over two months,” Brand wrote in the Stark letter. Citing a report written by Democrats on the eight-member task force who proposed the OCE, Brand added that the investigation should not have exceeded three months.

The House ethics committee has also criticized the OCE, most recently in Stark’s case, for what it described as “conflicting” records.

Speaking generally about the OCE process, Brand added Monday: “This is not supposed to be a plenary investigation. It’s a probable cause investigation. The fact that they have to do it in 90 days means they have to move quickly and expeditiously. … They don’t have to investigate like the committee does.”

“In my view, in some instances, they are going too deep and too far to justify the additional time they are taking,” he added.

Wise defended the OCE’s timeline Monday, however, stating that although the House resolution creating the panel establishes deadlines for the investigation, it does not require the OCE to finalize and vote on its report during that same period.

“It would be impossible to draft and circulate for approval a set of factual findings to six individuals … all over the country and then have them come to Washington and deliberate and vote them out” in that same period, Wise said.

In response to Brand’s declaration that the OCE is going too far in its investigations, Wise said: “What does a half-done investigation look like?”

A spokesman for Rep. Marcy Kaptur (D-Ohio) — whom the OCE also reviewed in its PMA probe but then closed the case without a recommendation for further review by the House — offered a more magnanimous evaluation of the House’s fledging two-tier ethics process, while acknowledging difficulties.

“It hasn’t been the smoothest process, I think everybody knows that,” Kaptur spokesman Steve Fought said in January.

“Obviously OCE and ethics have bumped into each other a few times,” Fought said.

The House ethics panel has also acknowledged its review of PMA, although it has not identified which Members or possible rules violations it is examining.

“Everybody’s aware that they’re still trying to find their sea legs and how to make the process internally function a bit smoother going forward,” Fought said.

Paul Singer contributed to this report.