Published in Roll Call September 13, 2007

Cases Offer Insight On Congressional Investigations

For most of their careers, there were two men in Congress who could not be more different geographically, culturally or politically than Sen. Larry Craig (R-Idaho) and Rep. William Jefferson (D-La.). Yet, both men are now making arguments to their respective houses that are virtually identical: Congress has no right to investigate or to punish them for their alleged misconduct outside of Congress. Putting aside the vitriol following their arrests, both men have actually raised some compelling arguments that have been largely ignored by the press.

From the outset, Craig’s arguments that his misdemeanor disorderly conduct offense was a private, or at least not a legislative, matter suffered from its source. Craig has long argued that punishment is appropriate for others accused of sexual impropriety, from his sole vote on the House ethics committee to censure Rep. Barney Frank (D-Mass.) to his vote to expel then-Sen. Bob Packwood (R-Ore.). Moreover, he has never shown particular concern over civil liberties or the rights of accused criminal defendants — until he became one himself.

Yet, this is a case where the arguments may be more compelling than the client. Craig’s attorneys have correctly noted that this crime is not only a minor misdemeanor offense but also unrelated to any Senate business. There is no question that a disorderly conduct misdemeanor outside of Congress has never been viewed as a subject for formal investigation. Under the Minnesota statute, disorderly conduct can be anything deemed “boisterous or noisy” that may arouse “alarm, anger, or resentment in others.” It is a crime that would cover anything from arguing with a ticket agent to refusing to leave an airport restaurant.

Nevertheless, the Senate is given great leeway in policing its own ranks and technically may investigate any “improper conduct which may reflect upon the Senate.” The ethics manual expressly states that “[c]ertain conduct has been deemed by the Senate in prior cases to be unethical and improper even though such conduct may not necessarily have violated any written law, or Senate rule or regulation.”

There remains the question of whether it should do so. Craig’s alleged misconduct should never have been charged as a crime and he would not likely have seen the inside of a courtroom, let alone a conviction, if he had simply fought the charge. The officer in the case describes conduct that could be entirely innocent and his charge is based on the most sweeping interpretive judgments. Moreover, the underlying charge is not only impossibly vague, but it may criminalize potentially protected speech. Two adult males are allowed to discuss sex and even arrange for sex so long as they do so discretely and do not engage in sex in a public area. Since when is indicating a sexual interest a crime? If this were the case, heterosexual males would be carted out of airports by the busload. The ambiguity of this charge should concern anyone with a legitimate interest in individual rights (which would exclude Craig before Aug. 27).

Investigating this type of misdemeanor invites abuse. While some Senators expressed mild criticism of Sen. David Vitter (R-La.) after he admitted to using the services of prostitutes (and apparently made some client calls from the Senate floor), he was allowed to continue unscathed in the halls of Congress. Vitter was fortunate to be admitting to heterosexual sex, even if (unlike Craig) the underlying conduct is a felony. There is some need for a bright-line rule that retains an element of coherence and consistency in such cases.

Jefferson may offer the best case for establishing such a bright-line rule. Jefferson is facing 16 criminal counts in Alexandria, Va., that range from wire fraud to money-laundering to bribery. Like Craig, the absurdity of the Jefferson facts (particularly the $90,000 found in his freezer) has made him a favorite of late night comedians and a virtual pariah of his own party.
However, Jefferson has made some valid legal objections to his treatment. The raid on his Congressional office was flagrant and unconstitutional abuse by the Bush administration that succeeded in giving Jefferson a legitimate claim of victimization. Moreover, Jefferson has rightly objected to the filing of the case in Alexandria, the Justice Department’s favorite court. The Justice Department routinely uses Alexandria for cases that it cannot afford to lose — even pulling defendants like Zacarias Moussaoui from across the country. The “rocket docket” is viewed by many as an extremely pro-government court with judges selected carefully to handle the government’s high-profile cases. In this case, Jefferson will be denied a majority black jury pool in Washington, D.C., in favor of a majority white jury pool in Virginia.

Jefferson also argues that Congress should await any verdict and, according to papers filed this week, his alleged misconduct does not involve his legislative duties. The bribery statute requires a nexus between the receipt of money or gifts in exchange for some official favor or action. Jefferson insists that his offer to assist companies in overseas ventures was a purely private venture and he took no official action to assist his business associates. It is an argument that was successful before the U.S. Supreme Court in 1999 in the case of former Clinton Agriculture Secretary Mike Espy. Espy claimed that the gratuities given to him by Sun Diamond Growers were not connected to any official act.

The complaint does allege some tangential connections between the alleged bribe and Jefferson’s legislative work, including alleged promises to meet with other Members and references to his official position in conversations. While the odds are against Jefferson in such a challenge, his case illustrates how these cases involve complexities and uncertainties best left to a criminal jury.

Of course, any conviction of Jefferson on such conduct would be the legitimate basis for expulsion. Conversely, Craig has pleaded guilty to conduct that does not materially affect either the Senate or his ability to be a senator. It is a matter best left to his voters. The same can be said for other violations ranging from drunken driving to adultery prosecutions. The mere fact that Craig’s alleged homosexual trysts embarrassed his party is not enough to elevate the issue to an official matter for investigation.

The tale of these two cases should be a cause for greater thought over when it is appropriate to investigate matters that are arguably not connected to legislative functions. In the case of Craig, no official action is needed. In the case of Jefferson, any action would be premature before the outcome of his criminal case.

It is time for Congress to hold hearings on the creation of guidelines that should govern such cases. This ideally should occur before the next Congressional scandal — which, if the past two years is any measure, does not leave much time.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.