New Guidance For Terminating Lobbying Registration
The Clerk of the House has introduced interesting new guidance on grounds for terminating a lobbying registration. Click here for clarification.
Elliot Berke: Remembering Jack Kemp
A champion of economic freedom and proud Wake Forest parent
America lost a great man on May 2 with the passing of Jack French Kemp, Jr. And Wake Forest lost a good friend. Kemp may not have attended Wake Forest, but he was a part of our Deacon family. Most of the world knew Kemp as a Republican politician and champion of economic freedom, but Deacons also knew him as a Wake Forest parent and grandparent.
He spoke on campus many times over the years — as Opening Convocation Co-Speaker in ‘86 (in which he received an Honorary Doctor of Laws Degree), our Commencement speaker in ‘94, and most recently at the Volunteer Board gala last year. His son Jimmy (’93) played quarterback for the Deacons, and Kemp was frequently seen in the stands cheering on his son and the Old Gold and Black.
Churchill on Torture?
Obama Misquotes Churchill in Press Conference
Not quite the Great Man’s words:
In his press conference of 29 April, in a response to a question on the disclosure of top secret memos on the use of “enhanced interrogation methods,” Mr. Obama said:
…“I was struck by an article that I was reading the other day talking about the fact that the British during World War II, when London was being bombed to smithereens, had 200 or so detainees. And Churchill said, ‘We don’t torture,’ when the entire British-all of the British people-were being subjected to unimaginable risk and threat….the reason was that Churchill understood - you start taking shortcuts, over time, that corrodes what’s best in a people. It corrodes the character of a country.”
…While it’s nice to hear the President invoke Winston Churchill, the quotation is unattributed and almost certainly incorrect. While Churchill did express such sentiments with regard to prison inmates, he said no such thing about prisoners of war, enemy combatants or terrorists, who were in fact tortured by British interrogators during World War II.
Read the whole post here.
OIG Closes Investigation into Former DOJ Official
Yesterday, the DOJ OIG released two reports related to the 2007 grant making process. The office closed its audit and investigation into the former head of the Office of Juvenile Justice and Delinquency Prevention. [ABCNews]
Congratulations to Demon Deacons Curry, Smith, Arnoux, Vaughn and Swank on heading to the NFL:
Wake finishes NFL Draft with four players selected
Wake Forest increased its number of drafted players to four on Sunday when safety Chip Vaughn and middle linebacker Stanley Arnoux were each drafted by the New Orleans Saints in the fourth round. [NFL Draft]
Congratulations to the Deacon players.
OGE has issued guidance on who must sign the Ethics Pledge
The Office of Government Ethics (OGE) has received numerous questions concerning which officials must sign the Ethics Pledge required under Executive Order 13490. Therefore, OGE is issuing this guidance to help agency ethics officials determine which officials are subject to the Pledge requirement.
The guidance can be found here.
Elliot Berke: In the News
Iowa GOP-er defends payments to son
By: John Bresnahan
April 3, 2009 04:27 AM EST
Rep. Steve King (R-Iowa) is defending more than $156,000 in payments made from his campaign committee to his son Jeff over the past five years as “bona fide campaign-related services at fair market value.”
In a February letter to the King for Congress committee, the Federal Election Commission questioned whether the payments were an improper “personal use” of campaign funds.
In a response to the FEC last week, Elliot Berke, an attorney for King for Congress, said the payments to Jeff King were legitimate, saying the younger King is the campaign manager and only full-time employee of the committee.
“Jeff King typically starts his workday at 8 [a.m.] and works until 5 [p.m.], Monday through Friday, 52 weeks a year,” Berke wrote in a March 23 letter to the FEC. “In general terms, he is responsible for the day-to-day operations of the campaign, as well as the overall oversight of office management.”
Elliot Berke: In the News
Parties Skirt Rules on Gifts, Plan Lavish Conventions
By BRODY MULLINS and ELIZABETH WILLIAMSON
August 16, 2008
WASHINGTON — When the Democratic Party holds its convention the week after next, members of Congress will be able to hear singer Kanye West at an all-expenses paid party sponsored by the recording industry.
They can play in a poker tournament with Ben Affleck, courtesy of the poker industry. They can try to hit a home run at Coors Field, home of the Colorado Rockies, thanks to AT&T Corp. Free drinks and cigars will be on offer at a bash thrown by the liquor industry.
[Kanye West]
The corporate largesse is on tap despite new ethics laws and rules that both chambers of Congress adopted in 2007, aimed at weakening the links between lawmakers and lobbyists. Spearheaded by the Democratic Party, the ethics effort included an attempt to ban corporations and lobbyists from throwing lavish parties for members at the national political conventions.
But in the months since the new rules took effect, lawmakers have watered down the guidelines, and Capitol Hill and K Street have teamed up to find ways around the guidelines as written. Politicians and lobbyists are now preparing about 400 of the biggest parties — both at the Democratic gathering in Colorado and when Republicans convene the following week in St. Paul — that conventioneers have ever seen.
“Despite a slight chilling effect, the types of events you can hold really hasn’t changed very much,” says Elliot Berke, a Washington campaign-finance and ethics lawyer. “It’s just a question of adhering to the new guidance.”
The ethics rules that legislators drafted for themselves in response to the law sought in principle to ban lawmakers and their staff from accepting gifts, meals, trips or tickets from lobbyists and from corporations that employ lobbyists. But they also included dozens of exceptions.
Elliot Berke: In the News
Lobbyists not changing their plans for Obama
By Susan Crabtree
Posted: 11/05/08 07:09 PM [ET]
Joel Jankowsky’s lobbying firm isn’t planning to alter its practices in any way in anticipation of a Barack Obama administration, despite the presidential frontrunner’s promise to crack down on special interests.
Jankowsky, a partner at Akin, Gump, Strauss, Hauer and Feld, doesn’t think Obama’s efforts to curtail K Street’s access and influence will hurt lobbying by his firm or others on K Street. Akin, Gump has no plans to lay off any of its GOP talent or cut back on certain practices, he said.
“There will always be a market for honest professionals who are steeped in particular areas of knowledge and established in Washington to petition their government,” said Jankowsky, whose time in Washington dates back to the early to mid-1970s when he worked for then-Speaker Carl Albert (D-Okla.).
In fact, Jankowsky and other lobbyists believe new ethics rules and regulations ushered in by the Democratic caucus bolster K Street’s bottom line.
Obama’s promise to bring more regulation, scrutiny and accountability will likely produce more business for K Street as the corporate world adjusts to a more intrusive environment, Jankowsky predicts.
Obama’s plan to restrain the influence-peddling industry in Washington includes an effort to stop the revolving door from the administration to K Street in its tracks.
According to his plan, no political appointees in an Obama administration will be permitted to work on regulations or contracts “directly and substantially related” to their prior employer for two years.
Furthermore, no political appointee will be able to lobby the executive branch after leaving the government during the rest of Obama’s presidency.
Obama has taken Sen. John McCain (R-Ariz.) to task for keeping lobbyists on his campaign staff and for tapping Bill Timmons, the chairman emeritus of the small but influential Timmons and Company, to lead his White House transition team.
Nick Allard, co-chair of Patton Boggs’ public policy department, argues that Obama’s insistence on keeping his administration lobbyist-free could do more harm than good by forcing him to rely on a staff inexperienced with Washington.
“You don’t want only virgins and academics in your administration,” Allard said in a recent interview.
Republican ethics lawyer Elliot Berke said such a ban, especially during an economic downturn, could have the unintended consequence of encouraging some of the “best and brightest” players in Washington to seek jobs on Capitol Hill rather than in an Obama administration.
“It could make an administration too academic and bureaucratic, and could also make Congress, with less post-employment restrictions, a more attractive place to work,” he said. “I am not sure that sort of analysis was what the Framers intended.”
Elliot Berke: In the News
Legislators Using Law As Shield In Probes
Clause Complicates Congressional Cases
By Carrie Johnson
Washington Post Staff Writer
Saturday, November 1, 2008; A01
A constitutional clause designed to protect members of Congress from abusive or harassing lawsuits is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate scandal.
Under a constitutional provision known as the “speech or debate clause,” lawmakers have wide protections that cover their work on Capitol Hill. That means legislation, floor speeches, and wiretaps that capture information related to votes and strategy are often out of bounds in developing a criminal case.
The latest lawmaker to seize on the controversial legal argument is Rick Renzi (R-Ariz.), who is citing the wiretaps of his Verizon Wireless BlackBerry in trying to persuade a court to throw out charges of fraud, extortion and conspiracy against him.
For four weeks surrounding the 2006 midterm elections, FBI agents secretly listened as Renzi and fellow House members traded phone calls to gossip about congressional leadership races and fret over the future of the Republican Party. The conversations also revealed intrigue and favor-trading among House members and their aides.
Earlier this week, Renzi received a boost when the House leadership, both Republicans and Democrats, asked the judge in his case for permission to file a friend-of-the-court brief in support of at least some of Renzi’s arguments.
With 3,500 open cases across state, local and federal government, FBI Director Robert S. Mueller III has called targeting corrupt officials the bureau’s “top criminal priority.”
But critics say Congress members suspected of using their offices for personal gain are using the law as a shield.
“It’s the biggest issue in federal corruption prosecutions,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington and a former federal prosecutor. “If courts continue to expand the breadth of the clause, we are likely to see more bribery and other illegal conduct by legislators go unpunished.”
Recent examples of the constitutional tug of war abound:
· In their ethics indictment of Sen. Ted Stevens (R-Alaska), prosecutors referred elliptically to legislative favors that Stevens did for oil services company Veco and others in exchange for home improvements and gifts. But they refrained from presenting that material to the jury or including an explicit bribery charge in the indictment in part because of the lawmaker’s legal protections. Before his conviction Monday, Stevens had attempted without success to get the trial judge to throw out some of the evidence against him by citing the constitutional clause. The issue could form one basis for his likely appeal, analysts said.
· The bribery case against Rep. William J. Jefferson (D-La.) has been stalled for more than two years after FBI agents raided his congressional office, largely because of fights over whether investigators exceeded their authority. A federal appeals court in the District has already barred prosecutors from using information gathered in the raid. The case now hinges on $90,000 in cash found in the lawmaker’s freezer, which the government contends was bribes from telecommunications companies. Jefferson is fighting the allegations.
· Long-running investigations of Rep. John T. Doolittle (R-Calif.) and former House majority leader Tom DeLay (R-Tex.) and their connection to disgraced lobbyist Jack Abramoff have slowed to a crawl because of debates about the scope of the speech or debate clause.
· The top lawyer for the House last year cited the legal protection in his successful attempt to quash a subpoena to appropriations panel staff member Greg Lankler. Prosecutors sought Lankler’s testimony in their investigation of a lobbying firm’s ties to Rep. Jerry Lewis (R-Calif.).
Legal experts say that lawmakers’ aggressive use of the clause poses problems for the Justice Department’s public integrity section. Earlier this year, prosecutors unsuccessfully sought to persuade the Supreme Court to overturn the ruling in the Jefferson case, saying that if the lower-court decision persisted, it would call “vital investigative techniques into immediate and serious question.”
The Renzi prosecution will test those boundaries. Once a rising GOP star and a protege of Sen. John McCain (R-Ariz.), Renzi announced he would not run for reelection amid the intensifying investigation of a land-swap deal that he helped broker. Instead, he is channeling his energy to fight a 35-count indictment handed down in February. Last week, he asked a judge to dismiss charges against him or, at a minimum, to exclude taped conversations and critical testimony from his assistants that may have been obtained in violation of the speech or debate protections.
Brian Heberlig and Kelly Kramer, Renzi’s attorneys, said that investigators had improperly snooped on “hundreds of phone calls between Renzi and his legislative aides and 16 phone calls between Renzi and other members of Congress.”
The exchanges included a call involving the entire Republican conference days after the 2006 midterm elections, a chat between Renzi and Rep. Jack Kingston (R-Ga.) about their votes for House GOP leadership candidates and another conversation between Renzi and Rep. John Shadegg (R-Ariz.) about election results and the performance of the National Republican Congressional Committee.
“The volume of protected legislative acts seized during the wiretap is staggering,” the defense lawyers wrote.
Wyn Hornbuckle, a spokesman for the U.S. attorney in Arizona, who is leading the Renzi case, said prosecutors will “reserve comment” on Renzi’s arguments until filing a formal response next month.
In a memo prepared by government lawyers before the wiretaps in October 2006, prosecutors contended that constitutional restrictions would not apply because the eavesdropping would occur while Congress was out of session. They planned for a special team to review evidence touching on legislative activity, but made an exception for talk related to the land swap.
The problem, defense lawyers and outside experts say, is that their approach directly conflicts with the U.S. Court of Appeals ruling in the Jefferson case.
Before that decision, the speech or debate clause had been interpreted narrowly: If investigators did not disturb Congress’s work, their strategies to uncover corruption were fair game. But the Jefferson ruling broadened the definition of “legislative activity.” Originally, the provision was meant to protect lawmakers’ independence and to shield them from unfair attacks by political or executive branch rivals, scholars say.
“This is the balance that you see trying to be worked out,” said Joshua Berman, a former prosecutor who is now a defense lawyer in Washington. “The limits of how far the speech and debate clause goes are going to get played out in the courts.”
Meanwhile, Justice Department officials and House and Senate lawyers continue to negotiate investigative steps that FBI agents may take to root out Capitol Hill corruption. The talks began after the Jefferson raid ignited a clash.
Robert Walker, a former federal prosecutor and counsel for the House and Senate ethics panels, said the Jefferson raid, as well as efforts to compel legislative aides to tape conservations with their supervisors, are “extraordinary” steps.
“These are going out toward the edge. In and of themselves they do raise issues central to the speech or debate clause, about whether the tactics themselves are intimidating to the independence of the legislature,” Walker said.
“Speech or debate is not an absolute privilege, but the courts have been pretty clear that when it applies, it applies absolutely,” said Elliot S. Berke, a former top lawyer for DeLay and onetime House speaker J. Dennis Hastert (R-Ill.).