Reacting to an Office of Congressional Ethics probe of a junior staffer, Rep. Steve Pearce pushed the House to add some stiff new language to its rules governing the OCE and the House Ethics Committee.
During a closed-door GOP conference meeting, the New Mexico Republican persuaded his colleagues to insert new subsections into the rules, stating the two entities “may not take any action that would deny any person any right or protection provided under the Constitution of the United States.” Another addition to the rules package for the 114th Congress reaffirms that a person subject to a review by the OCE has a right to be represented by counsel, as is clearly stated in the agency’s rules, and establishes that invoking such a right is not to be held as a presumption of guilt.
Pearce said he felt a junior field staffer, who has since left his office, was “unfairly singled out” when the OCE reviewed allegations of misconduct against the staffer — charges that were ultimately dismissed — and makes the professional ethics investigators out to be intimidating.
“You can imagine, you’re just a junior staffer and you’re suddenly called up by people saying you’ve got to start turning over everything … and you can’t use a lawyer and then if you do, you wonder how you’re going to pay for it,” Pearce told CQ Roll Call. “That’s just not the position staffers of this Congress should be put in.”
The OCE rules, published on its website, conflict with Pearce’s account. The rules establish that the office will notify the Ethics Committee and the subject of any preliminary review initiated by the board and provide the subject with a statement of the nature of the review. The rules also clearly establish that if a subject or witness chooses to hire legal representation, they must notify the OCE, and all communication will go through the lawyer.
There is no public record of the probe in question, and confidentiality rules bar the OCE and the Ethics Committee from disclosing details of dismissed cases.
Pearce’s office disclosed its communications from ethics investigators. Letters from the OCE state the agency may draw a negative inference from refusal to cooperate, and may recommend the use of subpoenas in its report to the Ethics Committee. Todd Willens, Pearce's chief of staff, said the OCE gave the appearance that hiring a lawyer would be perceived negatively.
“The OCE has an unblemished record of conducting fair reviews that respect the rights and privileges of everyone involved. There has never been an instance in which we have done otherwise," said Omar Ashmawy, OCE’s staff director and chief counsel. "The OCE has never in any matter taken an inference — good or bad — because someone has hired an attorney.”
Pearce rejected the notion that staffers and members of Congress could cooperate with the OCE without a lawyer, and described the new language as a "protection," that safeguards due process and the right against self-incrimination. “I think now a staffer can go and say, 'We have a rule of the House.' And so, absolutely it’s better than nothing. It’s better than what we have now.”
Craig Holman, a government affairs lobbyist with Public Citizen, said OCE's current rules explicitly state that anyone who wants to can hire a lawyer, and he does not believe the agency would discourage a member or staffer from doing so. Holman said the new amendment "doesn't provide any kind of protection that isn't already there." But it may stall future investigations.
"What [the amendment] seems to do is help tie up the ethics process for both OCE and the House Ethics Committee in a way that allows members or staff who are under investigation to try citing their own interpretation of what is constitutional and unconstitutional and try taking stands on that," Holman said.
Pearce doesn't know if the amendment could be used as grounds for not cooperating with ethics investigators. "That has to be figured out by legal minds," he said. "I'm not a legal mind."
During the 110th Congress, Holman worked closely with watch-dog organizations and Democrats in drafting and promoting the “Honest Leadership and Open Government Act.” The legislation, signed into law on Sept. 14, 2007, established ethics changes in both chambers, and a later House resolution established the OCE. Holman said he is "a little surprised that even these slights came about in the rules," because Speaker John A. Boehner, R-Ohio, and House Minority Leader Nancy Pelosi, D-Calif., have stood behind the OCE since its creation.
In 2011, the House defeated a proposal that would have slashed funding for the OCE by 40 percent. That measure came from Rep. Melvin Watt, D-N.C., who was the subject of an OCE inquiry in 2010 and was later cleared. It gained support from at least 11 members whom the OCE had probed.
The biennial rules process is another source of potential weakness for OCE. Watchdogs rallied to OCE’s aid in late 2012 , amid serious questions about whether it would survive in the 113th Congress. Outsiders including Public Citizen, the Campaign Legal Center and congressional scholars Norman Ornstein, Thomas Mann and James A. Thurber, continue to call for the House to make the OCE a more permanent institution of Congress.
House Rules Chairman Pete Sessions, R-Texas, said the change in rules for the 114th Congress came about because there were some efforts to say "our ethics rules have to be followed and somehow your individual liberties and rights don't matter. And we want to make sure they do," he added. Pressed for specifics, Sessions said, "I believe some people think that they were at a disadvantage."
Pearce also asked the GOP conference to consider a third rules change, which would have created a process for junior level staff to seek reimbursement for legal fees in cases that are recommended for dismissal. The office claims the staffer at the center of the investigation was saddled with more than $12,000 in legal debt as a result of the probe. Under the proposal, taxpayer money would be used to reimburse him. Pearce plans to continue to discuss the change.
Correction, 2:30 p.m. A previous version of this story incorrectly stated how the OCE was established. It was established by H Res. 895.
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