Well, as you probably know by now, Rep. Weiner was . . . well . . . less than frank. (ok, I have used up my one allowed pun). I do not see a basis for criminal allegations, but Weiner is likely to face an ethics investigation. Minority leader Nancy Pelosi has called for an ethics investigation. There does appear to be grounds for such a charge, though the House has historically not used its rules to punish members for reprehensible acts committed in a members’ personal life.
Weiner was careful to avoid calling for an investigation for two very good reasons. One was that he was lying and the other is that he would have to lie to investigators (which is a commonly charged crime under 18 U.S.C. 1001, as in the case of John Edwards).
Calling for an investigation is a smart move. It deflects blame from the House leadership for failing to act and, if cleared, lessens the scandal by confirming that it is a personal matter. Both Republicans and Democrats on the Ethics Committee have an interest in narrowly construing the rules, which they have historically done. I have been a long critic of the congressional ethics rules and process.
Weiner’s conduct is baffling, bizarre, and utterly reprehensible. He only “came clean” when reporters located a host of pictures sent to as many as six different women, including the picture showing himself in full face with a handwriting note reading “Me” with an arrow pointing at his face. To magnify the disaster for Democrats, he not only degraded himself but resurrected the image of Andrew Breitbart.
Weiner was careful to note that he did not use congressional resources in the matter — though obviously his staff has been busy with the scandal for a week. In some ways it has the same profile as the scandal involving Sen. John Ensign (R-NV), though Ensign not only slept with the wife of a former aide but used his authority to find a job for her husband. However, a comparison shows more serious acts committed by Ensign in terms of his engaging in proscribed conduct. The Senate ethics committee recently found substantial evidence to support allegations that Ensign: (1) conspiracy to violate, and aiding and abetting violations of the post employment contact ban, 18 U.S.C. § 207; (2) false or misleading statements to the Federal Election Commission regarding a $96,000 payment; (3) unlawful and unreported campaign contribution and violations of federal law and a Senate Rule prohibiting unofficial office accounts; (4) spoliation of documents and potential obstruction of Justice violations; (5) gender discrimination; and (6) violation of his own senate office policies.
Weiner in comparison does not appear (thus far) to have used official resources. The photos appear to have been sent from AnthonyWeiner@aol.com on his BlackBerry .
Some use of staff to deal with such controversies is allowed. The House rules tend to focus narrowly on insular aspects of a member’s use of campaign and congressional resources. The only violation at this time would appear a broad view of personal misconduct that undermines the integrity of the House. Rule XXIII, Clause 1, of the House Code of Official Conduct states that “a member . . . officer or employee of the House shall conduct himself at all times in a manner that shall reflect creditably on the House.” However, such a standard for prosecution would require the Ethics Committee to multiple its work 100 times over. The problem with applying such a general rule is that it can be used to punish members for lifestyles that the majority finds unacceptable. Such morality codes often raise serious problems for free speech and association. In Weiner’s case, he has made the matter more serious by lying repeatedly for over a week and alleging potentially criminally conduct by his accusers. He insistence that he was “the victim” involved attacking both reporters and critics to try to extinguish the scandal — which of course had the opposite effect. Lying is nothing new for members of Congress but this record would make Joe Izuzu blush.