This week, we witnessed an extraordinary appearance from House Minority Leader Nancy Pelosi who told reporters that she has dirt on Newt Gingrich and would reveal at some later date — suggesting that the embarrassing disclosure would come from her service on an ethics review of Gingrich when he was House Speaker. I have been a long critic of Gingrich for some of his statements and policies, but I find Pelosi’s statements to be reprehensible and unethical. What concerns me, again, is the relative absence of criticism from Democrats who should show more principle in denouncing this type of politics.

Pelosi told reporters:

“One of these days we’ll have a conversation about Newt Gingrich,” she said. “I know a lot about him. I served on the investigative committee that investigated him, four of us locked in a room in an undisclosed location for a year. A thousand pages of his stuff.” She then added that she would release the bombshell “When the time’s right.”

That is not just grossly unfair to Gingrich but it could be a gross violation of ethics rules depending on her meaning. One of two things is true. First, and most likely, the information from the ethics investigation was not deemed appropriate to disclose and remains under confidential rules. If that is the case, Pelosi is violating the spirit if not the letter of the ethical rules in referring to the unreported allegations. Second, if the information was deemed appropriate to release and is so damaging, why did not the members release it in the interests of the public interest.

The House Ethics Rules contain the following provision:

Confidentiality of Records
The Privacy Act protects the records maintained by government agencies from disclosure, except for specified purposes or with the permission of the person to whom the record pertains. Although the statute does permit disclosure ―to either House of Congress, some agencies require Members to show written consent from their constituents before they will release the constituents‘ records to the Members. The Privacy Act does not apply to congressional documents. Historically, however, communications between Members and constituents have been considered confidential and should generally not be made public without the constituent‘s consent.

The rules mention confidentiality guarantees 27 times.

It is also incredibly unfair to announce that you have secret evidence of wrongdoing or impropriety against a candidate with a wink and a nod. It is degrading for our political system as well as to the House of Representatives as an institution. [Notably, this is the same Pelosi who recently pointed out that while a majority of Americans despise Congress, a larger minority did not despise Congress when she was Speaker.]

While her spokesman, Nadeam Elshami, insisted Pelosi “was clearly referring to the extensive amount of information that is in the public record, including the comprehensive committee report with which the public may not be fully aware.” That is not what the press comments suggested. Pelosi said she would release information when the time was right. If she was referring to material already in the public domain, she was intentionally misleading the media in order to impugn the character of a candidate. Why would it be news that Pelosi was prepared to restate what is already known in public. The reference to the ethics investigation suggested knowledge beyond what was released to the public. No matter how you feel about Gingrich, that is unfair and wrong.

Such comments come close to defamation lines. A member can cite the speech and debate clause as well as common law privilege against such claims. However, statements off the floor or outside of legislative proceedings are generally not privileged. Here the clear import is that there is some deadly scandalous information that has yet to be disclosed against Gingrich. Unfortunately, as a former public official and a public figure, Gingrich falls under the New York Times v. Sullivan standard which requires actual knowledge of the falsity or reckless disregard. There are also robust protections for opinion. Pelosi can insist that, while others may not be amazed by the dirt, she thought it was fatal. Moreover, she can insist (with her office’s later rationalization) that she was only discussing public information.

The difficult in Gingrich making a case for a tort does not make it right. Frankly, some liability here would be helpful in cleaning up the current cesspool of politics. The question is whether the House will respond to the use of the ethics process in this way. In the meantime, Pelosi should apologize to both Gingrich and her colleagues . . . and the American people. I do not buy the argument that this was just a promise to repackage what is already known or available. The material reviewed by the committee was not all made public and, if she was simply promising to point out material that is already available, she conveyed that in a remarkably odd fashion. If you are not going to share the nature and basis of your allegations, then don’t mention them until you are ready to explain the context and specific of the allegations. By the way, if you want to read the report, here it is.

House Rules: Code of Conduct Student 09-10

Source: Washington Post

FLOG THE BLOG: Have you voted yet for the top legal opinion blog? WE NEED YOUR VOTE! You can vote at HERE by clicking on the “opinion” category. Voting ends December 31, 2011.