Reps. Don Young (R-Alaska) and William Jefferson (D-La.) are keeping mum on whether they will vote for a bill that includes language calling on the Department of Justice (DoJ) to investigate the notorious Coconut Road earmark when that measure comes to the House floor Wednesday.

Both offices did not respond to inquiries about how Young and Jefferson plan to vote on the measure, which is expected to pass. House Democratic and Republican leaders are not whipping the bill or advising their members how to vote, according to leadership aides.

House Speaker Nancy Pelosi (D-Calif.) initially said the House ethics committee should look into the Coconut Road matter, but later endorsed the idea of a DoJ probe.

The Senate language that the House is now expected to pass directs DoJ to look into how an earmark for a Florida road project, which was included in the 2005 transportation authorization bill, was changed after that measure passed the House and the Senate but before it reached the president’s desk. Such a change may have violated House rules, which prohibit substantive alterations to bills during the enrollment process, the formal procedure in which a measure is recorded before it moves on to be signed by the president.

Young is at the center of the dispute. His office has confirmed that his staffers made the unorthodox change, but he has not indicated exactly why it was altered, and his office has not answered specific questions about any benefits to a real estate developer. The developer, Daniel Aronoff, owns 4,000 acres along Coconut Road and was involved in throwing a Florida fundraiser for Young in 2005.

Jefferson’s vote on the bill will be scrutinized because of his legal issues.

Earlier this year, a court decision delayed Jefferson’s trial on an array of bribery and corruption charges after the Louisiana lawmaker and a bipartisan group of House leaders successfully challenged an FBI raid on his congressional office. They argued that it violated constitutional separation-of-powers protections, an issue that could be raised if DoJ begins investigating Young or any other members involved in the Coconut Road earmark.  

Ethics experts said passing a measure directing the DoJ to investigate internal House matters is fraught with thorny legal and constitutional problems.

Stan Brand, a Democratic ethics lawyer, argued that Congress is giving any eventual defendant a great legal argument that politics unduly influenced any DoJ investigation into the matter.

“They are handing the defense an issue on a silver platter,” Brand said. “The decisions the DoJ makes are supposed to be based on the merits of the individual case.”

Brand referred to a “doctrine of undue congressional interference” that gives private litigants the right to protest prosecutions that appear to be motivated by politics.

“The defense could say that the DoJ was motivated by a decision to curry favor with Congress,” he remarked.  

Brand, along with Republican ethics experts, argued that passing such a measure sets a dangerous precedent and may violate separation-of-powers protections both parties fought hard to defend when the FBI raided Jefferson’s office in 2006.

Shortly after that raid, Pelosi joined then-Speaker Dennis Hastert (R-Ill.) in filing suit against the FBI.

They said the raid was unconstitutional, an argument validated — at least in part — when a court found that some aspects of the raid had violated separation-of-powers protections.

Jan Baran, a GOP ethics lawyer, said the Constitution gives each chamber the power to ensure that its internal rules are not violated. Any Senate action calling for a Justice investigation into an alleged House rules violation would appear to violate the Speech or Debate Clause, he said. In addition, he said DoJ could decide to fight any kind of direction from Congress it views as a separation-of-powers violation.

Furthermore, Baran said, the DoJ has no power to consider possible violations of internal House rules and can only investigate potential criminal violations.

“Has [Congress] made an allegation that a law has been broken, and if so, what law?” he asked. “It will be interesting to see what the attorney general does about this.”

The DoJ did not return a call seeking comment.

Other ethics lawyers warned against flinging the congressional door open to DoJ investigations.

“I’m not sure you can limit a Justice investigation once you’ve invited them in,” said Ted Van Der Meid, an attorney at McKenna Long & Aldridge who served as counsel to Hastert during his time as Speaker.