Will Capitol Police fully investigate its own?

Congressional ethics committees have no jurisdiction over the department

Pro-Trump rioters stand on a U.S. Capitol Police armored vehicle as others take over the steps of the Capitol on Jan. 6, 2021, as Congress works to certify Electoral College votes. (Bill Clark/CQ Roll Call file photo)
Pro-Trump rioters stand on a U.S. Capitol Police armored vehicle as others take over the steps of the Capitol on Jan. 6, 2021, as Congress works to certify Electoral College votes. (Bill Clark/CQ Roll Call file photo)
Posted February 8, 2021 at 5:16pm

At least 17 Capitol Police officers are being investigated in relation to the Jan. 6 attack on the Capitol, when a violent mob disrupted the certification of Joe Biden’s Electoral College win. Those investigations are being undertaken by the department’s own Office of Professional Responsibility, where it is not certain the results of such investigations will make it into the public record of what happened that day.

Office of Professional Responsibility investigations into alleged officer misconduct rarely reach the public and have, in some cases, resulted in light punishment for egregious offenses. The Capitol Police Office of Inspector General, which reports to the Capitol Police Board, is also investigating the events surrounding the Capitol riot, a review that could include intelligence failures, planning failures and leadership shortcomings. Public disclosure of that report is no sure thing either.

On Feb. 5, acting Chief Yogananda Pittman issued a taped video statement in which she said the department “will be making significant changes to our operations, policies and procedures” based on the findings of several reviews into the preparation, security and response to the insurrection. This includes but is not limited to the Capitol Police Office of Inspector General review and the security review by retired Army Lt. Gen. Russel L. Honoré.

Five people died as a result of the violence that delayed Congress’ certification of the Electoral College results, including Capitol Police Officer Brian Sicknick. Pittman disclosed in her video statement that 125 Capitol Police officers were physically assaulted and more than 70 Capitol Police officers were injured in the violent mob riot.

Although congressional hearings and reviews of what went wrong will be plentiful, it is not certain the findings of either Capitol Police investigation will become public. The department is not compelled by law to disclose inspector general or internal affairs reports, and there is no process to ensure that the findings reach the public.

“You need to establish mechanisms that people have reason to trust,” said Daniel Schuman, a transparency advocate and expert on the Capitol Police at Demand Progress. “And right now, there is no reason for people to have any trust in any of the mechanisms inside the Capitol Police.”

It is commonplace for law enforcement to handle misconduct internally, but since the May 2020 killing of George Floyd in Minneapolis police custody, a tsunami of efforts to increase police accountability engulfed the nation. The Minnesota Legislature passed a robust set of police overhauls in July, one of which creates a panel of expert arbitrators to address police misconduct incidents. In New York, Gov. Andrew M. Cuomo rolled out ambitious police overhaul measures, including action to improve the transparency of law enforcement officer disciplinary records.

In Congress, House appropriators proposed several transparency measures for the Capitol Police that included a path to make department records public, including inspector general reports. These were largely excluded by the Senate in the final version of an omnibus appropriations measure that became law, leaving a mere recommendation that “encourages” the force to share information with the public.

In the absence of a transparent internal affairs division and inspector general, it begs the question of what can be done to bring the Capitol Police force into the public view.

There are two ethics offices in the House: the House Ethics Committee and the Office of Congressional Ethics. There is one in the Senate, the Senate Select Committee on Ethics. They are all tasked with investigating allegations of wrongdoing by members, officers or employees in their respective chambers.

None of them have jurisdiction over the Capitol Police because those officers are not employees of the House or the Senate. The force’s $515.5 million budget is funded by the House and Senate through the appropriations process, and financial disclosure filings of certain Capitol Police employees are available in the House’s Legislative Resource Center.

“The Capitol Police are created by statute,” said Schuman. “They are not a House entity. They are not a Senate entity. They are like the Library of Congress.”

In the Senate, the Ethics Committee rarely holds senators accountable, but the House Ethics Committee has a more traceable line of action because it is compelled to act on investigations sent to it by the independent Office of Congressional Ethics, an entity that was created in 2008.

Investigations spearheaded by the Office of Congressional Ethics into former Reps. Duncan Hunter and Chris Collins resulted in Department of Justice prosecutions that both yielded guilty pleas, although former President Donald Trump subsequently pardoned them. The nonpartisan office also recently exposed thousands in misspent campaign and taxpayer funds by Rep. Sanford D. Bishop Jr., D-Ga., on endeavors that include Christmas parties and golf outings.

Unlike the House Ethics Committee, the Office of Congressional Ethics cannot issue subpoenas or determine if a violation occurred and is unable to punish subjects of its investigations.

Without an Office of Congressional Ethics in the Senate, there is almost no action taken. The Senate Ethics Committee has not sanctioned a member in 14 years.

Campaign Legal Center General Counsel Kedric Payne, who previously worked at the Office of Congressional Ethics, said ethics panels might not be the best entities to investigate the Capitol Police but there is a need to bolster accountability of the department from somewhere within the legislative branch.

“The congressional ethics committees are intended to ensure that lawmakers and their staff comply with standards of conduct, but they are probably not well suited to have jurisdiction over Capitol Police,” Payne said in an emailed statement. “However, it is evident that more accountability and transparency for the conduct of Capitol Police are needed to mitigate the national security risk inherent in their crucial mission of protecting lawmakers. Whenever any entity is without enforcement of its code of conduct the breakdown of individual integrity can chip away at the organization’s integrity.”

Eva Malecki, a spokeswoman for Capitol Police, did not respond to a request for comment. Representatives for the Senate Ethics Committee, the House Ethics Committee and the Office of Congressional Ethics declined comment.