Point of Order

           The Magistrate Judge in the Renzi case has issued this report and recommendation on Renzi’s claim that the indictment violated the Speech or Debate Clause. 

            To recap, (now former) Congressman Renzi is alleged to have told landowners who wished to obtain federal land exchange legislation that he would sponsor the bill only if they purchased for inclusion in the exchange certain property owned by a James Sandlin (who happened to owe Renzi a substantial sum of money). 

            The government’s primary argument is that these allegations do not offend the Speech or Debate Clause because they involve only future legislative acts.  It relies on cases, such as United States v. Helstoski, 442 U.S. 477 (1979), which hold that the promise to vote for a bill in the future, at least in the context of the promise being made in exchange for a bribe, is not a legislative act protected by Speech or Debate. 

            The Magistrate begins his analysis by accepting the basic thrust of the government’s argument.  He states that “the government may establish the allegations with proof involving promises to vote and solicit other votes for the respective land swap proposals in return for the purchase of the Sandlin property; such promises are promises to perform future legislative acts, and as such, under Helstoski, are not protected.” 

            However, as the Magistrate obliquely acknowledges, the matter is not so simple as the foregoing quote would suggest.  The Renzi case would have been on all fours with Helstoski if Renzi were alleged to have promised to vote for the land exchange legislation in return for the purchase of some property unrelated to the legislation.  The same would be true if Renzi had allegedly stated that he would vote for the land exchange legislation only if the Sandlin property were included and the purchaser paid more than X amount for it.  In actuality, however, these allegations have not been made; instead, the core of the prosecution’s case is simply that Renzi corruptly insisted that he would support the land exchange legislation only if the Sandlin property were included.

            Via Election Law Blog and Political Activity Law comes this story from The Washington Times:  Senator Diane Feinstein cancelled a fundraiser after the lobbyist hosting it sent out an invitation using the Senator’s committee assignments as the theme for the event’s meal: 

Washington lobbyist Heather Podesta mentioned the intelligence committee in an e-mail invitation attached to a formal notice of the event, saying that the lunch at the upscale Charlie Palmer steakhouse in Washington would begin at noon. In the e-mail, she said donors who gave between $1,000 and $2,500 could order up "the Select Committee on Intelligence for the first course."  

With a check "payable to Feinstein for Senate," the e-mail said other courses include "your choice of Appropriations, Judiciary or Rules committees," other panels on which she serves. 

What caught my eye from the article was this comment from Melanie Sloan, executive director of CREW.  Sloan is quoted as calling the invitation “audacious, but legal.”  She goes on to say: "By correlating a fixed-price menu with Sen. Feinstein's committee assignments, Podesta does what most of Washington assiduously seeks to avoid -- makes clear that members of Congress are for sale."  

Now Podesta’s invitation clearly showed bad judgment and illustrates the kind of behavior that ethical lobbyists should strive to avoid.  To say that the invitation “makes clear” that Senator Feinstein is “for sale,” however, goes a bit far.  A more charitable explanation is that the invitation was intended as a humorous way of conveying the Senator’s committee assignments.  No doubt this was for the benefit of invitees with an interest in matters before those committees, but this is still a long way from suggesting that either the Senator or the committees are for sale.   

It should be noted that lobbyists, at least those who are lawyers (as Podesta is), have ethical obligations that go beyond what is merely “legal.”  If Sloan’s interpretation of the invitation were correct, it would seem that Podesta would have violated Rule 8.4 of the D.C. Bar Rules of Professional Conduct.  This rule provides that it is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.”   

It is a worthwhile caution for all lawyer-lobbyists to remember this rule, and to refrain from comments that can be interpreted as claiming an ability to improperly influence Members of Congress.

The Secretary of the Senate and Clerk of the House have just issued a “clarification” that closes the “one free lobbying contact per quarter” loophole that I have discussed here, here and here in the last few days.  Under the clarified guidance, a registered lobbyist cannot be de-listed merely because that “individual did not in the current quarter and does not reasonably expect in the upcoming quarter to make more than one lobbying contact per quarter.” 

In the event that a registered lobbyist no longer reasonably expects to make any future lobbying contacts, the clarified guidance would still permit de-listing.  Although the statute does not directly address this situation, it seems to me a reasonable inference from the statutory definitions is that a “lobbyist” or an employee “acting as a lobbyist” is someone who is expected to make at least an occasional lobbying contact.  Otherwise, someone who technically qualified as a lobbyist at one time (even a junior employee who attended a couple of meetings) could remain so for years merely because he or she provided, or was expected to provide, even incidental support for lobbying contacts made by others.   

            It undoubtedly will be argued that this will enable de-listing of someone who functions as a “de facto lobbyist” behind the scenes, but who avoids lobbying contacts in order to escape the burdens of being designated as a registered lobbyist.  This problem, however, exists in any case for “de facto lobbyists” who never engage in more than one lobbying contact.  Moreover, to make de-listing unreasonably difficult would itself tend to discourage people from registering as lobbyists in the first place.  All in all, it seems to me that the Secretary and Clerk have reasonably resolved this issue.

From The Hill: 

“These new questions have prompted us to review the guidance to ensure that there are no inadvertent loopholes,” said Beth Provenzano, deputy chief of staff for the Senate secretary’s office. She added that the guidance was thoroughly vetted with Senate and House institutional attorneys before it was issued.

“We are actively reviewing the issue to see if there is a problem,” said the House clerk’s office in a statement.

            Danielle Brian of the Project on Government Oversight has posted some thoughts regarding the President’s removal of the Inspector General for the Corporation for National and Community Service.  While Brian notes various troubling aspects of this matter (for more details see here), she contends that the removal complies with the letter, if not the spirit, of the Inspector General Reform Act of 2008 (a law co-sponsored by then-Senator Obama). 

            The IG Reform Act provides in pertinent part that “[i]f an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer.”  The President evidently attempted to comply with this requirement by letter to Congress in which he “explained” the removal as follows: “[I]t is vital that I have the fullest confidence in the appointees serving as Inspector General.  That is no longer the case with regard to this Inspector General.” 

            Brian argues that this “minimal explanation” satisfies the legal requirement.  She notes that Congress chose not to adopt a provision that would have limited the President’s ability to remove IGs to specific grounds, namely permanent incapacity, inefficiency, neglect of duty, malfeasance, felony conviction, gross mismanagement or waste funds, or abuse of authority.  Because Congress did not require that the President to have a good reason for firing an IG, she argues, it has only itself to blame for the fact that the President has given a bad one. 

            While Brian may very well be right that Congress would have done better to prohibit removal of IGs except for good cause, I do not see the connection between this issue and the notification provision.  Perhaps the President can, for example, remove an IG because his horoscope says that it is a good day to fire someone, but the law still requires him to notify Congress that this is the reason for the removal.   

            When Congress required the President to state the reasons for removing an IG, it was not looking for an answer analogous to the response to “why did the chicken cross the road?”  Explaining that the President removed or transferred an IG  because he lacks confidence in him is little better than explaining that the chicken crossed the road to get  to the other side.  The question remains, why did the President lose confidence in the IG? 

            The problem here is not that the President has given a bad reason for the removal.  It is that he has failed to give a reason at all or, at best, has given only one of the reasons for the removal.  The statute requires that the President give the “reasons” for the removal.  Unless the President lost confidence in the CNCS IG for no reason at all, the notice to Congress fails to meet this requirement.

Covington’s Political Law Update (hat tip again to Rick Hasen) also discusses the “de-listing” of lobbyist issue, stating as follows: 

“Many in Washington had interpreted the structure of the statute to mean that the 3-month period applies to the 20% time threshold, but not to the two-or-more-contacts requirement. The Clerk and Secretary apparently read this definition to mean that a lobbyist is an individual employed or retain for services that include more than one lobbying contact per quarter. If the Clerk and the Secretary stick to this view, individuals who have not had more than one contact in two consecutive quarters (and do not plan to in the future) can de-list, even if they still spend more than 20% of their time on lobbying activities. The Obama Administration’s restrictions on registered lobbyists has made the question of when a lobbyist can de-register more important than ever. Because the statutory basis for the Clerk and Secretary’s interpretation is somewhat dubious, it may be prudent to hold off a bit on de-listings until it is clear that they intend to stand by their interpretation.” 

Although the language of the new guidance seems quite clear, I think Covington’s caution is well-advised—it would be prudent to see if the Clerk and Secretary decide to reconsider this issue.

            The Clerk of the House and Secretary of the Senate last week released new guidance on the requirements of the Lobbying Disclosure Act.  Among other things, this guidance addressed when a registrant may “terminate” a lobbyist (i.e., remove an individual from the list of persons who act as lobbyists on that registrant’s reports).  This is an issue that has become important only in the last couple of years, as being a “registered lobbyist” now involves both regulatory burdens and restrictions on one’s ability to obtain employment in the Obama Administration.   

            The new guidance states: “A registrant may remove a lobbyist only when (i) that individual’s lobbying activities on behalf of that client did not constitute at the end of the current quarter, and are not reasonably expected in the upcoming quarter to constitute, 20 percent of the time that such employee is engaged in total activities for that client; or (ii) that individual did not in the current quarter and does not reasonably expect in the upcoming quarter to make more than one lobbying contact per quarter.” 

            As pointed out by the law firm of Caplin and Drysdale (hat tip: Rick Hasen’s Election Law Blog), this guidance is problematic because “[t]he LDA, as well as prior House and Senate guidance, make clear that an individual qualifies as a lobbyist by spending 20% of his/her time engaged in lobbying activities for a client in a calendar quarter and making two or more lobbying contacts over the course of services provided for that client (even if the second contact occurs in a later quarter). Thus, an individual qualifies as a lobbyist if he/she made two or more lobbying contacts at any point during their work for a client, and not merely in the current or subsequent calendar quarter.”   

            Under the new guidance, someone who has made more than one lobbying contact for a client in the past, and continues to spend more than 20 percent of his or her time on lobbying activities, could apparently be de-listed if he or she made no more than one lobbying contact in the current quarter and did not expect to make more than one in the upcoming quarter.  This would essentially mean that one could be an unregistered lobbyist so long as one is careful to limit one’s lobbying contacts to one per quarter, though this would seem contrary to the language and prior interpretation of the LDA. 

            This would seem to open up a very significant new loophole in the LDA.

            As mentioned in a previous post, the case began with FOIA requests by journalists, including Heather Brooke, seeking information regarding something called the Additional Expense Allowance.  As one court explained: 

“The duties of Members of Parliament are chiefly carried out at Westminster and in their constituencies.  They often work long hours, and late into the evening.  As a result, MPs for constituencies outside inner London generally need to reside in two different places.  Since 1971 they have been entitled to claim expenses up to a set limit to defray the additional costs of hotel bills or a second home.  The allowance which they can claim for this purpose is called the Additional Expense Allowance or ACA.” 

            The FOIA requests were made to the House of Commons administration, rather than to individual MPs, because the House of Commons is a “public authority” subject to FOIA, while MPs are not. 

            After the House refused to make the requested expense information available, the journalists went to the Information Commissioner, who issued a decision that was partially favorable to each side.  Both sides then appealed to the Information Tribunal, which issued a decision in February 2008.    

The House argued the case primarily on the grounds that the requests violated the privacy of the MPs whose expenses were at issue.  This, it seems, was a bad litigation strategy, because it required the Tribunal to balance the public interest in disclosure against the privacy interests that were implicated.   The Tribunal determined that there was a substantial public interest in disclosure, mainly due to the inadequacy of the ACA system itself.  It began by explaining: 

“The framework of rules governing the administration of ACA is said to be based on the principle that Members are primarily responsible for identifying, claiming and certifying their own expenditure on allowances, and for the propriety of that expenditure.  Historically, this is because of their constitutional position as elected representatives.” 

            Although the Tribunal noted that “[i]t is not our function to say what system ought to be operated by the House,” it nevertheless could not “decide the issues which are before us without arriving at a view on the effectiveness of the existing controls.”   On that question, the Tribunal was decidedly unimpressed:

           Democrats on the House Permanent Select Committee on Intelligence have alleged that Republican members violated committee rules by speaking with The Hill newspaper following a classified briefing by the CIA on interrogation methods.    Specifically, Representative Kline (R-Minn.) was quoted by the paper as follows: “The hearing did address the enhanced interrogation techniques that have been much in the news lately,” Kline told The Hill. “Based on what I heard and the documents I have seen, I came away with a very clear impression that we did gather information that did disrupt terrorist plots.”  The Democrats are threatening punitive sanctions for this alleged violation. 

            The rule in question is HPSCI Rule 12(a)(1), which states: 

            (1) Generally. Except as otherwise provided by these rules and the Rules of the House of Representatives, Members and Committee Staff shall not at any time, either during that person’s tenure as a Member of the Committee or as Committee Staff, or anytime thereafter, discuss or disclose, or cause to be discussed or disclosed:

(A) The classified substance of the work of the Committee;

(B) Any information received by the Committee in executive session;

(C) Any classified information received by the Committee from any source; or

(D) The substance of any hearing that was closed to the public pursuant to these rules or the Rules of the House. 

            If Kline had disclosed classified information to the press, he would be in violation of subsection (C) of this rule.  Such action would also violate House Rules and, potentially, federal law.  However, there appears to be no allegation that classified information was released.  (It is difficult to see how Kline’s statement, which is essentially the same as claims publicly made by former Vice President Cheney and many others in the past several months, could be said to reveal any classified information). 

            Nonetheless, subsection (B) prohibits not merely the discussion or disclosure of classified information, but of any information received in executive session.  Democrats can argue, therefore, that Kline violated the subsection by discussing the topic of the briefing and by disclosing that the information in the briefing indicated that enhanced interrogation techniques resulted in intelligence that disrupted terrorist plots.  Such a statement, they may contend, constitutes “discussing” and/or “disclosing” the information that was received. 

            Republicans can counter that subsection (B) does not prohibit discussing or disclosing the fact or topic of an executive session briefing, only “information received” in the briefing.  (They can point to the fact that the topic of the briefing was on the HPSCI website).  They can further argue that Kline did not discuss or disclose any information received in the briefing (e.g., by identifying terrorist plots that were disrupted), but merely stated his conclusion based on receiving that information.  They might also contend that the purpose of subsection (B) is to prevent the inadvertent disclosure of classified information, and that Kline’s statement was carefully worded to avoid any possibility of doing so.  Finally, they may argue (see this) that under the broad reading of subsection (B) the Democratic members of HPSCI would also be in violation.  [Update:  In this connection, it should be noted that Speaker Pelosi has made a number of remarks in recent weeks regarding an executive session briefing she received while a Member of HPSCI].

          Although it has not received a great deal of attention here, a major scandal has rocked the British Parliament in recent weeks.  The scandal has its roots in a request several years ago by a free-lance journalist named Heather Brooke, who used the newly enacted British Freedom of Information Act to ask for records of taxpayer-funded expenses of Members of Parliament.   To enforce her rights, Ms. Brooke was forced to go to court, where she ultimately prevailed.  Before the House of Commons actually complied with the court ruling, however, someone provided a British newspaper with a breakdown of MP expenses, which revealed what the NY Times called “a rich tale of politicians exploiting a lax system of expenses to claim a mind-boggling array of benefits.”  (My favorite is an MP named “Hogg” who was reimbursed for the cost of clearing the moat at his country home). 

            It is worth noting that although the United States has had FOIA for decades longer than Britain, our version does not apply to the legislative branch at all.  This has led some journalists to “wonder if Brooke's work in England could come back to haunt the U.S. Congress.”  Last week Paul Blumenthal of the Sunlight Foundation drew the connection between the lack of transparency in Britain and that in the U.S. Congress.  He pointed out that the Sunlight Foundation had been asking for months that the House put online the Clerk’s Quarterly Statement of Disbursements, which is currently available to the public only in hardcover volumes which can be viewed at the Legislative Resource Center or purchased from GPO.

And what do you know, Speaker Pelosi decided yesterday to send a letter to the Chief Administrative Officer of the House directing him “to publish the quarterly Statement of Disbursements for the House of Representatives in an online format at the earliest date.”  As John Wonderlich of Sunlight notes. “Speaker Pelosi’s move should be interpreted as a recognition that public information — even potentially embarrassing information about how Members spend public funds — should be truly accessible to the general public, which means online.”  One might also interpret the move as reflecting a need to show a commitment to transparency in light of what has occurred in Britain.

The fact remains, however, that American citizens who wish to obtain access to non-public information from the House or Senate cannot use FOIA for that purpose.   No doubt there are many MPs today who wish that the same were true in Britain.

            The organization Citizens for Responsibility and Ethics in Washington (CREW) put out this news release regarding a grand jury subpoena received by Representative Visclosky.  Entitled “WITH VISCLOSKY’S SUBPOENA, CREW ASKS -- WILL HOUSE COUNSEL ONCE AGAIN STYMIE A CRIMINAL INVESTIGATION INTO A MEMBER OF CONGRESS?,” the essence of CREW’s point seems to be that it is per se improper for House Counsel to be involved with Speech or Debate or other privilege issues in connection with a criminal investigation of a Member of Congress.  According to CREW director Melanie Sloan, “Although members of Congress campaign against the ‘culture of corruption,’ behind the courtroom door -- and out of the public eye – the House Counsel, acting on behalf of both the Speaker of the House and the Majority Leader, routinely steps in to protect members who have abused their offices and the public trust from prosecution. The Republicans and Democrats may not see eye-to-eye on much, but both parties agree members of Congress should be above the criminal laws that apply to the rest of us.”

            As a former senior counsel in the House Counsel’s office, I know a little bit about this subject so I telephoned Naomi Seligman, who is listed as the CREW contact person for this issue.  Had Ms. Seligman cared to speak with me, I could have explained to her the House Counsel does not represent Members of Congress in criminal investigations.  If Visclosky is a potential target of the grand jury investigation (which appears to be the case), the House Counsel will be unable to represent him due to the potential conflict between his personal interests and those of the House as an institution.  Accordingly, CREW’s statement that “if recent history is any guide, the House Counsel will soon step in and move to quash the subpoena” is simply false.

            If Visclosky should decide to move to quash the subpoena in whole or in part, the motion would be made by his personal counsel.  It is not uncommon for personal counsel to consult with House Counsel on this issue, given the latter’s expertise in Speech or Debate issues, but in my experience the decision is in no sense made by House Counsel (or by the Speaker to whom the House Counsel reports).  It is true that if a motion is filed, and an issue deemed of institutional significance to the House is raised, the House Counsel may file an amicus brief on behalf of the Speaker and/or the Bipartisan Legal Advisory Group.  

            Perhaps CREW has intentionally distorted its news release for purposes of making its point in the most simplistic way possible.  But if it were interested in actually understanding the process it is criticizing, I would have been happy to explain it to them.  But the gentleman who answered the phone refused to allow me to speak with Ms. Seligman, saying that she only speaks with “the press.”  Nor was he willing to let me speak with anyone else knowledgeable about the release (despite my explaining the reason for my call). 

            I guess that CREW is too busy preaching openness and transparency to practice it.

            As mentioned in my last post, it is possible that the new guidelines on stimulus lobbying will apply to Members of Congress and thus prohibit agency officials, during the period that competitive grant applications are being evaluated, from engaging in oral communications with Members and their staffs about the applications.  (This thought was suggested by Senate staffer Tom Jones on the google group of the Open House Project).  As a policy matter, this would make sense because using congressional influence would be an obvious way for applicants to try to affect the award of stimulus funding.  This is particularly true if applicants are limited in their ability to approach agency officials directly. 

            Enforcing such a limitation on Members of Congress and congressional staff, however, is tricky.  As a practical matter, it is difficult for agency officials to refuse to take meetings with Members and staff, or to demand that the subject matter of such meetings be limited.  Even if there were a prior agreement to respect the restrictions of the executive branch rules, it would be relatively easy to circumvent them.   As in, “I know that I am not allowed to talk to you about my constituent’s excellent grant application, but I just wanted you to know that I will be very disappointed if it is not approved.” 

            Moreover, it is unlikely that congressional actors would suffer any consequences even if they were to blatantly violate the executive branch rules.  Although the House and Senate Ethics Manuals warn Members that certain types of administrative proceedings do not permit ex parte communications with agency officials, they stop short of suggesting that such communications would violate congressional rules or result in disciplinary action.  In fact, as the Senate Ethics Manual points out, “neither the Senate, nor the House, has to date, disciplined a Member solely because of that Member’s intervention with an executive agency.”  (This statement must now be qualified by the fact of the Senate Ethics Committee’s admonishment of Senator Domenici, but it is doubtful that this precedent would be applied in the absence of aggravating circumstances beyond merely providing assistance to a constituent).    

            So how can the administration ensure that Members of Congress do not undermine the intended effect of the stimulus lobbying restrictions?  One possibility would be to require agency officials to publish information about stimulus-related contacts by Members of Congress, just as they are required to do with respect to contacts by registered lobbyists.  The published information could identify instances where Members or congressional staff sought to communicate about specific grant applications in violation of the executive branch rules.  Such disclosure might deter congressional attempts to circumvent the rules or, at a minimum, would alert competitors to the tactics being used in order to win grant proposals.

            John Wonderlich of the Sunlight Foundation posts regarding potential changes to the Obama policy on stimulus lobbying.   There are two basic aspects to these changes, as announced by WH special counsel Norm Eisen on May 29, 2009.  First, the administration proposes to extend the ban on oral communications regarding certain stimulus matters “to contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process.”  This means that whatever the restrictions are on oral communications, they will apply equally to registered lobbyists, non-lobbyists with an interest in stimulus projects (e.g., company executives), and others who might want to influence the process (Members of Congress?). 

            Second, there would be a narrowing of the subject matter covered by the ban on oral communications.  According to Eisen, the restriction on oral communications would be limited to the period “after competitive grant applications are submitted and before awards are made.”  This seems to be a much narrower restriction than under the current policy, which applies, without time limitation, to all oral communications regarding “particular projects, applications, or applicants for funding” under the stimulus bill. 

            As Wonderlich points out, the first change suggests a recognition by the Obama administration that its attempt to distinguish between communications of registered lobbyists and those of non-lobbyists is unrealistic and unfair:

            “Relying on the distinctions of the Lobbying Disclosure Act (which defines who must register as a lobbyist) was too easy to skirt, since the influential are often not lobbyists. This was one of the main complaints from CREW, ACLU, and ALL, who suggested lobbyists were being unfairly singled out, and pointed to well-heeled CEOs and campaign contributors who are clearly influential, but often fall below the 20 percent threshold for lobbying registration. Sunlight has often made this point as well, and CREW has already praised the forthcoming guidance.” 

            One wonders whether the administration will revisit some of its other policies that arbitrarily discriminate against registered lobbyists. 

It is also worth noting that by applying equally to both lobbyists and non-lobbyists, the new policy would also seem to be an improvement from a First Amendment standpoint.  The main First Amendment concern with the current policy is that it arbitrarily prevents one group from petitioning the government.  The new policy, on the other hand, restricts all oral communications from any source during the period when specific applications are being evaluated.  This seems much more like a requirement that a particular proceeding be conducted “on the record,” which would not appear to raise any serious constitutional concerns.

Where law enforcement officials are supportive of the congressional request, however, the normal procedure has been for the Department of Justice to file a motion seeking permission of the court to release the materials to the committee.  This was the process followed by the Senate Select Committee on Ethics, which wrote Attorney General Holder on March 19, informing him that the committee is “conducting a preliminary inquiry into the circumstances surrounding the appointment and seating of Senator Roland W. Burris.”  It requested access to wiretap and other evidence relevant to that inquiry and asked that the Department of Justice seek such court order as might necessary to respond favorably to the request.  The committee also explained that any evidence received would be treated confidentially under the committee’s rules and expressed its willingness to enter into an agreement with the Department regarding non-disclosure. 

The Justice Department subsequently filed a motion as requested, and Judge James Holderman, chief judge of the US District Court for the Northern District of Illinois, issued an order on May 26 granting the motion.  The legal issue before the court was whether the committee qualified as an “investigative or law enforcement officer” entitled to receive wiretap evidence under 18 U.S.C. § 2517(1). 

An “investigative or law enforcement officer” is defined as “any officer of the United States . . . who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”  18 U.S.C. § 2510(7).  This definition raises three issues with respect to the Senate Ethics Committee. 

First, although not considered by Judge Holderman, is the issue of whether the committee consists of “officers of the United States.”  Depending on the context, laws using this or similar terms have sometimes been interpreted as including Members of Congress, and sometimes not.  See generally Operation Rescue Nat’l v. United States, 147 F.3d 68 (1^st Cir. 1998).  The term itself is therefore ambiguous as applied to Members. 

The second issue is whether the committee is empowered “by law” to conduct investigations (it is clear that it is not empowered to make arrests).  Here the court found  the constitutional authority of disciplining Members, which is granted to each House under article I, § 5, cl. 2, implies an investigative authority, and this, combined with the delegation of this investigative authority to the committee pursuant to Senate Resolution 338, satisfies this requirement.  One might quibble with this conclusion on the grounds that the committee’s authority has been authorized by “resolution,” rather than by “law,”  but the court’s conclusion seems to me to be better view.  After all, the Constitution is the supreme law of the land and even congressional rules have been considered to have the force of law. 

The final, and most difficult, issue is whether the committee is authorized to investigate violations of federal criminal law.  The court rested its affirmative conclusion on Senate Resolution 388, which provides in pertinent part  that the committee is to “receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto.”  The court concluded that “because the members of the Senate Ethics Committee are authorized by law to conduct investigations into misconduct that may reflect upon the Senate, including allegations of misconduct by a United States Senator that may violate the criminal laws of the United States, the members of the Senate Ethics Committee are investigative officers as defined by section 2510(7) and thus are qualified to receive disclosures under section 2517(1) for use in the performance of their official duties.” 

The problem with the court’s reasoning is that while the Senate Ethics Committee is clearly authorized to investigate whether a Senator (or Senate officer or employee) has committed a violation of law in the performance of official duties, this is rather different from an authority to investigate violations of law per se.  One could argue that the statutory definition in 2510(7) is meant to include only those who have a role in investigating offenses for the purpose of enforcing the law, while the committee’s authority is to investigate persons, not offenses, for purposes of determining whether their conduct merits discipline.  The fact that this conduct may or may not have violated a criminal statute, while relevant to the committee’s conclusion, is not determinative.   

Nonetheless, I think that the court reached the correct result here.  Because each House of Congress has broad powers to investigate and obtain information for purposes of carrying out its constitutional functions, courts should be extremely reluctant to read a statute as applying in such a way as to limit the congressional investigatory authority.  It is this overriding constitutional consideration, rather than the statutory language, which is most supportive of Judge Holderman’s ruling. 

This explains how the Senate Ethics Committee got access to the Burris transcript.  Less explicable is how that transcript got released to the general public.  The reason is that the Justice Department, in its sealed motion to Judge Holderman, attached a copy of the transcript.  When the judge decided to unseal the motion (which seems appropriate in the absence of any objection from lawyers for Senator Burris or former Governor Blagojevich), the transcript was unsealed as well. 

It seems to me that this has to have been an error.  The whole reason for the motion was that the law severely restricts the dissemination of evidence collected by wiretaps.  The Senate Ethics Committee was entitled to access only because it was found to be within the statutory exception for “law enforcement and investigative officers.”  The fortuity that the Justice Department attached the transcript to its motion certainly should not transform that exception into one for the entire world.