Ethics Office Didn’t Forward Lawmakers’ Documents to DOJ

As seen in Roll Call:

No documents provided by House Members or their offices were among the evidence that the Office of Congressional Ethics forwarded to the Justice Department this week from its probe into lawmakers’ ties to the now-defunct PMA Group lobbying firm, a knowledgeable source confirmed Friday.

The OCE announced Thursday that it would to share “certain evidence” from its investigation with the Justice Department, citing questions over whether campaign donations were used in an attempt to influence the appropriations process…

“The OCE clearly has the authority to refer matters to the Justice Department. But it must do so judiciously,” said attorney Elliot Berke, who represented Rep. Sam Graves (R-Mo.) in an unrelated OCE investigation, which the ethics committee ultimately dismissed. “Now that it has actually set this precedent, it may have a chilling effect on parties who otherwise would have cooperated with the office.”

“Remember, the OCE does not have the ability to compel testimony,” Berke added. Unlike the ethics committee, the OCE does not have subpoena power and receives all interviews and documents on a voluntary basis.

Read the entire article here.

Havel speech anniversary worth noting

Please check out my column on the 20th anniversary of Vaclav Havel’s address to Congress here.

Citizens United ruling only the beginning of speech debate

Prior to the Supreme Court’s decision last week in Citizens United v. FEC, Jefferson Smith, Jimmy Stewart’s archetypal hero who arrived in our nation’s capital to take on the special interests, may never have made it to Washington. The film Mr. Smith Goes to Washington, after all, was speech funded by a corporation. As pointed out by Justice Anthony Kennedy, writing for the court’s majority in Citizens United, some officials at the time discouraged the film’s distribution because they did not like its criticism of Congress. Under prior precedent governing our campaign finance laws, such officials could have gone even farther and banned the film outright.

Our courts have long recognized that the First Amendment applies to corporations even in the context of political speech. However, federal law on the books prior to Citizens United prohibited corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate through any form of media.

Recognizing that political speech is indispensible to decision making in a democracy—and that this is true when the speech comes from a corporation, a union or an individual—the court struck down the independent expenditure prohibition as unconstitutional (direct contributions remain illegal). As a result, corporations and unions may use general treasury funds to pay for such messages, but still must adhere to existing disclaimer and disclosure requirements.

 

Happy New Year. Very pointed editorial in the Wall Street Journal today on the prosecutorial abuses in the Blackwater case

The Real Blackwater Scandal

Another example of prosecutorial abuse in a political case.

No, not as the left would have it, that Blackwater still exists. The scandal is that the Justice Department’s case against five former security guards for the military contractor unraveled late last week in what appears to be another instance of gross prosecutorial misconduct, as abusive Justice lawyers went after an unsympathetic political target.

The indictments—which were thrown out by D.C. District Judge Ricardo Urbina in a derisive and detailed 90-page opinion—stemmed from a 2007 firefight in Baghdad’s Nisour Square that left 14 Iraqis dead and others wounded. The government contends that five Blackwater guards, who were providing tactical support for the State Department after an IED exploded in the vicinity of a meeting with Iraqi officials, went on an unprovoked killing spree against unarmed civilians. The guards maintain that they came under attack by insurgents and were responding in self-defense to a mortal threat.

Judge Urbina dismissed the charges because prosecutors misused sworn statements the guards were compelled to make to investigators after the shooting, under the threat of job loss. This was routine practice under military contracting rules, though the statements could not be used in criminal prosecutions. Promptly after the Nisour incident these statements were also leaked to the media, which ran with the narrative of modern-day Hessians gone berserk.

“In their zeal to bring charges against the defendants in this case,” Judge Urbina ruled, prosecutors had violated Fifth Amendment protections against self-incrimination by using these compelled statements to formulate their case and ultimately obtain indictments against the guards. The judge calls it “the government’s reckless violation of the defendants’ constitutional rights.”

Because of prior contact with the compelled statements, the Justice Department’s entire criminal division had recused itself from the case, which was handed over to national-security prosecutors and later to Assistant U.S. Attorney for the District of Columbia Kenneth Kohl. The veteran Justice public-integrity lawyer Raymond Hulser was eventually assigned to lead a “taint team” to rebuild the case without using the off-limits statements, and he repeatedly warned the trial team that their evidence was “thoroughly tainted.”

“By all accounts these prophylactic measures fell well short of expectations,” Judge Urbina notes with some understatement. In “direct contravention of the clear directives” of Mr. Hulser, the statements were used to obtain a search warrant against Blackwater, figured into plea discussions, and exposed in testimony to the grand jury, forcing Justice to withdraw the case and present it to a new panel.

In the second round that featured redacted testimony from the first grand jury, prosecutors also excised what Judge Urbina calls “substantial exculpatory evidence.” The judge goes on to say that Justice’s “inconsistent, extraordinary explanations” for its conduct “smack of post hoc rationalization and are simply implausible,” and ultimately “lacking in credibility.”

Certainly the shootings at Nisour are a tragedy that strained U.S. relations with the Iraqi government, though the details seem reminiscent of the 2005 incident at Haditha, which the Washington political class played as another My Lai massacre but in reality was the product of the complex, asymmetrical combat conditions in a war zone. The courts martial against all but one of the Marines at Haditha have been dismissed or collapsed.

In this case, too, one question is whether prosecutors felt they could get away with such abusive behavior because Blackwater was such a politically unpopular defendant. The firm had political ties to Republicans, and Democrats and their media allies had made Blackwater a whipping boy to further undermine public support for the Iraq war. (Blackwater is now renamed Xe Services and no longer contracting in Iraq.)

This marks the fourth recent example in which judges have tossed out cases citing Justice Department abuse involving easy political targets. In the last year it has become clear that the ethics conviction against former Alaska Senator Ted Stevens was likely a miscarriage of justice, with prosecutors covering up evidence and trying to keep a witness from testifying.

There’s also the vendetta against two former executives at Broadcom in the forgotten political uproar over backdating stock options. That case was thrown out last month after a judge ruled that prosecutors had improperly pressured witnesses and leaked information to the press. Earlier this decade, a federal judge tossed out multiple tax evasion cases against former KPMG partners.

Something is rotten in the culture of Justice, leading ambitious government crusaders to think they can get away with flouting due process when the political winds are blowing hot. Congress and the press corps may be too politically implicated to police this prosecutorial malpractice, so it may be up to the judiciary to apply more stringent sanctions.

The Politics of Investing for Members of Congress

In depth piece on investing and potential conflicts of interests for elected officials in the Washington Post. [read here]

Prosecutors must not intimidate legislators

In early August, the Justice Department closed its investigation into former Rep. Tom Feeney, R-Fla. This development wasn’t just newsworthy because Feeney lost re-election — partly due to the cloud of investigation. It also came just weeks after a Washington, D.C., appellate court held that Feeney’s statements to the House Ethics Committee were protected by the “Speech or Debate” privilege.

The Feeney decision illustrates why last summer may go down as a seminal season for Speech or Debate jurisprudence. Courts in several jurisdictions actively reviewed the parameters of this arcane constitutional privilege.

Read the rest.

Insightful article by Al Kamen in Friday’s Post on FARA

In the Loop
By Al Kamen
Friday, August 21, 2009

The Foreign Agents Registration Act, passed in 1938 to track Nazi propaganda, requires lobbyists to disclose their clients, precisely whom they’ve lobbied on the Hill or in the administration, and what was discussed during those contacts.

FARA has been a useful, though limited, tool for reporters and the public trying to track lobbying efforts by foreign governments.

The problem is that these filings, until recently, have been on cumbersome, sometimes illegible paper forms, making it difficult to get a full picture of what countries and their lobbyists are up to and how successful they have been in getting policies changed to favor their agendas. The Justice Department digitally scanned the forms and posted them on its Web site two years ago, but it’s still a tough slog to work with the data.

No more. The Sunlight Foundation, which promotes open government, and ProPublica, a nonprofit investigative news operation, have teamed up to create a searchable, easily accessible, downloadable database of filings from July 2007 through the end of 2008 by about 300 foreign agents. It’s searchable by country, lobbyist, issue and member of Congress.

No more tedious plowing through paper records, says ProPublica Managing Editor Stephen Engelberg. The new Foreign Lobbying Influence Tracker (http://www.foreignlobbying.org) “allows users to follow foreign influence with just a few clicks of a mouse.” Right there in the comfort of home, sipping on your latte.

You can find out who the big spenders were, based on their 2008 filings: the United Arab Emirates ($11 million), the United Kingdom ($6 million), Japan ($4 million), Turkey ($4 million) and Iraq ($3.7 million). Dubai, one of the emirates, hired and paid three firms — DLA Piper, Mark Saylor Co. and Levick Strategic Communications — more than $4.6 million in fees to make sure that Dubai Aerospace would get a green light in its purchase of two aviation companies. The UAE had nearly 2,000 contacts with members of Congress last year.

NATO ally Turkey led the field last year with 2,268 Capitol Hill contacts (meaning letters, meetings, phone calls, faxes, etc.), ProPublica reported, largely from its successful drive to block a congressional resolution branding the 1915 slaughter of Armenians as genocide. Our Canadian cousins had 1,300 contacts, while our new ally, Libya, had 1,200. No contacts were reported involving Facebook and Twitter, but some of those could start appearing in this year’s filings.

Top lobbyists for foreigners included DLA Piper ($10 million), Livingston Group ($5 million), Cassidy & Associates ($2.5 million) and Fleishman-Hillard ($2.3 million.) As would be expected, members of the Senate and House foreign affairs committees were the most heavily importuned, with Rep. Robert Wexler (D-Fla.) and his staff logging 173 contacts, easily outpacing Reps. Roy Blunt (R-Mo.), with 105; Dan Burton (R-Ind.), with 100; and Howard Berman (D-Calif.), with 95.

Wexler’s first-place finish, according to the analysis, apparently was sparked by his co-chairmanship of the Azerbaijan Caucus at a time when Azerbaijan was looking for better trade and investment opportunities from the United States.

And you can track 74 campaign contributions that foreign agents made to members they were contacting. Three of the contributions, to Reps. Burton, Dana Rohrabacher (R-Calif.), and Donald Payne (D-N.J.), were made the same day they met with lobbyists from the PLM Group, a joint venture of the Livingston Group and the Podesta Group, according to the analysis.

What? You don’t have a registered foreign agent working for you? Everyone’s got one. Even the Dalai Lama! (Note: Not registering, aside from being bad form, can get the Justice Department after you.)

The “New” New Guidance for Lobbying on the Stimulus

On July 24, OMB revised its revised guidance on lobbying on the stimulus.  Prior guidance had restricted contacts lobbyists could have with administration personnel on stimulus funds.  The revised rules will allow administration personnel to accept meetings and calls from registered lobbyists.  See more here:

Important Speech or Debate Case Headed for En Banc Review by DC Circuit?

An important Speech or Debate case may be headed for en banc review by the DC Circuit.

“In the context of a specific case, the need for evidence usually will seem weightier than those long-term structural safeguards,” Judge Kavanaugh wrote in the opinion. “But courts must respect the constitutional balance between the Legislative and Executive Branches regardless of the perceived needs of the moment.”

Find the full opinion here.

Updated White House Ethics Policies

For updates on the White House’s ethics policies, please check here.