Davidson: OCE Draws Inferences Against Third Parties
I have a question about investigations by the Office of Congressional Ethics. I’ve read stories about OCE investigations of members where it appeared that the OCE used a witness’s refusal to cooperate with the investigation against the member being investigated, even though the member had no control over the witness’s refusal to cooperate. This made no sense to me. Why should a member be penalized for someone else’s refusal to cooperate with an investigation?
A. This is a great question, as it has come up in several recent investigations and goes right to the heart of the authority of the OCE, which the House created in 2008 to review and filter complaints of misconduct by House members and staffers to determine if they warrant referral to the House Ethics Committee.
Anyone can submit allegations of member misconduct to the OCE. When the OCE receives allegations, it first determines if there is “reasonable cause” to believe them, in which case it conducts a “preliminary review.” If through that review the OCE concludes there is “probable cause” to believe the allegations, the OCE conducts a secondary review, which is a more in-depth investigation, often involving witness interviews and collection of relevant documents. After a secondary review, the OCE recommends to the Ethics Committee either that the matter requires the committee’s review or that it should be dismissed. At this stage, the OCE typically prepares a report, which the law says should contain the OCE’s findings of fact as well as a description of the information it was unable to obtain and why it was unable to obtain it.
Your question is about a “negative inference” described in several recent OCE reports that the OCE takes when a witness does not fully cooperate with an investigation. The Ethics Committee recently published a report by the OCE of its 2012 investigation of allegations of misconduct by Rep. Bill Owens, D-N.Y. At issue was whether agents acting on behalf of the government of Taiwan were impermissibly involved in sponsoring or planning a trip that Owens and his wife took to Taiwan in December 2011. According to Owens, the trip was not paid for by the Taiwanese government or its agents but rather by a private entity, the Chinese Culture University, which the law allows. As soon as Owens learned of any question regarding the trip, he fully reimbursed the university, thereby paying for the trip himself.
Owens and his staff fully cooperated with the OCE’s investigation. However, some witnesses from whom the OCE requested information did not. The OCE’s report lists these witnesses and states that it drew negative inferences as a result of the witnesses’ failure to cooperate.
Owens’ legal counsel, Brian Svoboda, took issue with the negative inferences in a letter to the Ethics Committee. “The OCE bases its recommendation largely on the fact that other parties did not cooperate with the investigation,” said the September 2012 letter, “wrongly imputing this lack of cooperation to Representative Owens.”
“The suggestion that Representative Owens somehow should be held responsible for non-responses by independent institutions … should raise red flags for the entire Committee on Ethics,” the letter continued.
I contacted OCE counsel for a response. They told me that the OCE never draws a negative inference specifically against a member under investigation because of a third party witness’s failure to cooperate with an investigation. Rather, OCE counsel said, the OCE draws a negative inference against the witness that fails to cooperate. Thus, said OCE counsel, when the OCE requests certain information from a third party, and the third party refuses to provide the information, the OCE will sometimes assume that the requested information would be adverse to the party refusing to provide it. This assumption, OCE counsel said, is the type of common-sense inference that fact investigators make all the time. Moreover, they said, it is merely one “data point” that the OCE considers among all of the other facts that it gathers during an investigation.
For example, in the Owens matter, the OCE requested information from the Chinese Culture University to determine the role the university played in organizing, conducting and paying for Rep. Owens’ trip to Taiwan. When the university refused to provide all of the requested information, the OCE drew a negative inference. The report stated: “The OCE infers that the information the University refused to provide, taken together with the factual findings in this referral, supports the conclusion that there is substantial reason to believe that the alleged violation occurred.”
However, some attorneys who have represented third-party witnesses before the OCE complain that anything short of perfect compliance with an OCE request can result in an adverse inference against the witness. This may be because, unlike other government agencies conducting investigations, the OCE lacks subpoena power, which means it cannot use the court system to force witnesses to cooperate, under penalty of law. In the absence of this power, attorneys say that the threat of an adverse inference has become the OCE’s “club” to try to compel cooperation. Attorneys have said that the OCE sometimes uses this “club” even where witnesses made what the attorneys believed was an earnest effort to cooperate with the investigation.
Whether or not this is the case, one thing is clear: The OCE believes that the negative inferences are permissible and has no plans to stop making them anytime soon.
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to firstname.lastname@example.org. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.