Ethics Committee debates hiring outside counsel for Waters investigation

The leading Republican and Democrat on the House ethics committee are debating whether to hire outside counsel to handle the investigation of Rep. Maxine Waters (D-Calif.), according to a source familiar with the internal committee proceedings.

The committee considered hiring an outside counsel late last year after several turbulent months filled with missteps, partisan infighting and accusations that the attorneys on the case mishandled it.

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With Republicans now in the majority, new ethics Chairman Jo Bonner (R-Ala.) and ranking member Zoe Lofgren (D-Calif.) disagree on whether to make the hire. Bonner has argued privately that outside counsel is not necessary, while Lofgren is in favor of it.

The debate could be one of the first clashes between Bonner and Lofgren as they settle in to their new roles.

The ethics committee was in the process of moving its offices Wednesday and had no mechanism for receiving inquiries. Other efforts to reach Bonner or his committee staff were unsuccessful.

Before quitting in December, the panel’s chief counsel and staff director Blake Chisam urged the committee to hire outside counsel as a way to provide a clean slate and defuse the controversy over the attempted firings of attorneys on the case, according to two sources familiar with the matter. Chisam even began negotiating with outside ethics attorneys about what they would charge the panel for their work.

Last November, a week before the committee was scheduled to begin Waters’s trial, panel members announced an indefinite delay, citing the discovery of new evidence as the reason. Just days before, Lofgren had wanted to fire the two attorneys deeply involved in the case — one of them the lead lawyer — but Bonner objected and the two were placed on indefinite administrative leave without explanation, and apparently remain so.

Bonner, instead of hiring an outside counsel, wanted to expand the case against Waters — at least as of late last year, the sources said.

The ethics committee has a long history of partisan eruptions, breakdowns and finger-pointing over high-profile cases. The tensions were on public display last summer and fall as the panel struggled with how to handle the public trials of Waters and Rep. Charles Rangel (D-N.Y.), who was censured in early December.

At the beginning of Lofgren’s tenure as chairwoman, she and Bonner touted their ability to work together, but relations deteriorated last year when the two sharply disagreed about the timing of Waters’s trial amid other controversies surrounding Rangel’s public trial. Bonner eventually took the unusual step of publicly denouncing Lofgren’s decision to wait until after the elections to hold Waters’s hearing, charging her with playing politics with the ethics process.

The ethics panel is billed as a bipartisan committee, and it is the only one to have an equal number of Republicans and Democrats, five on each side.

As chairman, Bonner has the final say on major decisions, but if Democrats feel strongly about the need for an outside counsel, they could refuse to organize and constitute the committee, effectively shutting it down. An inquiry sent to Lofgren's office was not returned by press time.

But Lofgren and Democrats on the panel may be too tired from last year's battles to mount such a fierce response at the beginning of a new Congress.

In 2005, Democrats on the evenly-divided committee engineered a breakdown by refusing to meet and agree on procedural matters. They were protesting the GOP ousting and replacing previous Chairman Joel Hefley (R-Colo.) after the committee admonished then-Majority Leader Tom DeLay (R-Texas).

Despite calls to completely reconstitute the panel and name an entirely new roster of committee members in order to restore credibility, Speaker John Boehner (R-Ohio) tapped Bonner to be chairman.

Lofgren has made clear that the rocky two years have left her burned out, with no desire to serve. Still, Democratic leader Nancy Pelosi (D-Calif.) asked her to remain as the ranking member of the panel until a replacement is found, even if that means for the foreseeable future. Lofgren agreed to do so, but urged Pelosi to find a successor as quickly as possible.

As of Wednesday evening, the committee’s website listed only Republican members of the panel, including Bonner and Reps. Michael McCaul (Texas), Mike Conaway (Texas), Charlie Dent (Pa.) and Gregg Harper (Miss.).

Waters is accused of intervening on behalf of a minority-owned bank in which her husband owns stock and on whose board he’d previously sat. She has mounted a vigorous detailed defense, arguing that she was acting on behalf of all minority-owned banks, as she has done for other minority interests for years, and raising hundreds of thousands of dollars to fight it through a legal defense fund.

Ethics watchdogs also disagree on the idea of hiring an outside counsel. Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington (CREW), said she thinks hiring an outside ethics counsel is a terrific idea.

“I think an outside counsel on the Waters matter would be terrific and, in fact, [would be] the only way for members to have any real confidence in the outcome, given all of the controversy over the investigation,” she said.

Public Citizen’s Craig Holman, however, disagreed, arguing the ethics committee has already spent far too much time on the case and Waters deserves to have it wrapped up as soon as possible.

“This is what the ethics committee is supposed to be doing — handling these tasks,” he said. “If they outsource their job, then I think that’s an admission that the House ethics committee can’t handle this and we ought to have an outside ethics committee like the [Office of Congressional Ethics (OCE)] set up to handle the investigations and the trials.”

Robert Walker, an attorney who has served as the chief counsel on the Senate and House ethics committees, said he saw a rational argument for both views. While it's always better for the ethics panel to handle its investigations on its own, the Waters case has become so messy that the panel might decide it has little choice but to hire an outside counsel, he said.

"They may view it as the only practical solution to getting the inquiry going again, if that’s what they decide to do," he said.

The OCE, an outside board made up mainly of former members, was created three years ago to help burnish the tarnished House ethics process. It investigates complaints and makes recommendations to the full ethics committee for further action.

The committee has the ability to hire an outside counsel when it feels like doing so would make an investigation more effective or when a subject is so powerful members might fear retribution and fail to investigate the matter aggressively. The last time it did so was in 1995 for the case against then-Speaker Newt Gingrich (R-Ga.), who was accused of improperly using tax-exempt money to underwrite a college course.

The panel reprimanded him for misleading the committee about using tax-exempt money to advance his political goals and ordered him to pay a $300,000 penalty.

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