Office of Congressional Ethics fires back at House ethics committee over inquest

The new ethics office is fighting back against criticism from the House ethics committee that it had violated procedures and misinterpreted ethics rules while investigating a member of Congress.

The Office of Congressional Ethics (OCE) issued the strongly worded defense of its investigation of Rep. Sam Graves (R-Mo.), firing back at an October report by the House ethics panel that had criticized the investigation of Graves as “fundamentally flawed” and exonerated the Republican member of any wrongdoing.

The OCE said the ethics committee has no power to scrutinize and evaluate its investigations and went on to defend its procedures in a point-by-point rebuttal of the panel’s accusations.

“As a general matter, the Board finds no authority under which the [ethics committee] may interpose its judgment on the validity of a referral from the OCE based on its evaluation of the adequacy of the OCE’s procedures,” the report states.

The seven-page memo is the latest salvo in an escalating turf battle between the two ethics watchdogs.

Speaker Nancy Pelosi (D-Calf.) pushed legislation creating the OCE through the House last year after Democrats campaigned in 2006 against a “culture of corruption” marked by numerous GOP scandals. The bill barely passed the House, as many members expressed concern about handing the power of policing lawmakers to a board mainly composed of former members of Congress.

Since then the OCE has reviewed dozens of complaints or accusations against members and has recommended that the full ethics panel investigate many of them, creating an unusually heavy caseload. Several members under investigation as well as their political allies have expressed concern that the OCE is overstepping its authority and coming back to bite Democrats. Some fear the criticism of the OCE could result in efforts to scale back its authority and investigative powers next January.

Critics say the OCE is too sensitive and provides too much evidence that could taint members who are later exonerated by the full ethics committee. The OCE’s role is to make recommendations to the ethics committee, which then decides whether a member violated House rules.

The Graves investigation focused on allegations that he asked a business associate of his wife's to testify before the Small Business Committee. In clearing Graves, the ethics committee attacked the OCE for asserting that there may be “an appearance of a conflict of interest,” which they said the ethics rules don’t cover.

Among other criticisms, the ethics panel said the OCE failed to meet its own deadlines and provide “exculpatory evidence” to Graves, as is usually required.

The OCE has countered that House rules bar members of Congress from any activity that does not reflect “creditably” on the House, and have previously warned members to avoid an “appearance of a conflict of interest,” according to the seven-page response sent Tuesday.

The OCE also took issue with ethics committee criticism that it improperly impugned the credibility of statements from witnesses, including Graves.

“Rep. Graves’s statements, in the Board’s view, were contradicted at various points by documentary evidence,” the OCE wrote in its response. “The Board was able to compare the substance of Rep. Graves’s statements, as memorialized by the OCE staff, with the documentary evidence the OCE collected and find that Rep. Graves lacked candor in his interview.”

The OCE said it offered Graves a chance to appear before the entire OCE board, but he declined.

The OCE also dismissed the argument that it failed to provide exculpatory information to Graves, because Graves already possessed the documents in question. The ethics committee cited a memo prepared by Barry Pineles, chief counsel to the GOP staff on the Small Business Committee, but the OCE countered it was prepared by a lawyer on the committee who “had no personal knowledge of Rep. Graves’s conduct.”

“The memorandum itself is not evidence and is duplicative of witness testimony that is in fact evidence, and speaks to a number of issues, like procedures for announcing hearing topics, that are not relevant,” the OCE stated in its response.

As far as missing deadlines, the OCE said the ethics committee counted the wrong day as the first day in the probe, and as a result, “all of the subsequent dates in the [ethics committee’s] calculation are incorrect.”

In the Graves review, the OCE said the request occurred on March 26, but the review began on the date of the receipt of the request, April 2.

The ethics committee had argued that an interview with a witness occurred after the end of the second-phase review period, but the OCE said it was still legitimate because the delay was caused by their willingness to work with the witness’s schedule.

“The Board is confident that the single interview that occurred after the end of the second phase neither delayed the Board’s action nor prejudiced the rights of Rep. Graves.”

In issuing a response to the ethics committee charges, the OCE could be violating rules governing its operation. Lawmakers assigned to a task force spent months carefully crafting the OCE and trying to find the right balance between its power and that of the full ethics committee.

The report outlining the OCE’s powers prohibits it from commenting publicly on any matter unless the ethics committee requests it to do so. That rule appears to be designed to maintain secrecy in investigations, not in limiting its ability to defend itself from attacks, but its critics could try to use the rule to silence the OCE’s aggressive defense.

“At no time shall any board member or staff member of the OCE comment publicly on any matter within its jurisdiction, unless requested to do so by the [ethics committee] in order to participate in a public proceeding of that committee,” the report states.

However, the resolution creaeting the OCE, which supercedes the report, does allow it to communicate to those outside the office if the communication is approved by the board as necessary in conducting its official business or is pursuant to its rules.