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  • « Ethics probe clears GOP on Foley | Main | What of Foley's 'thin pink line'? »

    December 09, 2006

    A report with no teeth

    Posted by: Chris

    As expected, the House ethics committee report on the Mark Foley scandal answers more questions about how the matter was handled than initial press accounts suggested.  More on that later. 

    In the meantime, my general conclusion is that the report is a hypocritical exercise in exactly the same type of buck-passing and willful ignorance that the committee criticizes House members and staffers for exhibiting when they learned over time about the disgraced Florida Republican's unseemly interest in teenage pages.

    The report has already come in for some justifiable criticism for concluding that no ethics rules were violated, but to be fair the applicable ethics rule — that "members and staff act at all times
    in a manner that reflects creditably on the House" — is so vague as to be useless as a proscriptive against particular conduct.

    The ethics committee points out that the rule "does not mean that every error in judgment or failure to exercise greater oversight or diligence establishes a violation."  Fair enough, but the committee never goes on to spell out when such errors in judgment or diligence would give rise to a violation. Instead, it comes off like the Supreme Court's infamous standard for when pornography can be deemed legally "obscene": they know it when they see it.

    A New York Times editorial nailed the point.  "No, not every error or failure should be a violation," the Times allowed, "but certainly the ones that lead to an elected official’s sexually stalking teenage boys while his colleagues turn a blind eye or cover it up should be. We’d set the bar at least there. Apparently, it’s too high for the House."

    Rather than find rule violations, the House ethics committee issued a "strong reminder" — feel the teeth! — that "the failure to exhaust all reasonable efforts to call attention to potential misconduct involving a member and House page is not merely the exercise of poor judgment; it is a present danger to House pages and to the integrity of the institution of the House."

    Got that? Failure to protect the teens in the House page program "is a present danger … to the integrity of the institution of the House" but isn't so bad that it fails to "reflect creditably on the House" in violation of ethics rules.  (I'm not engaging in an unfair cut-and-paste job here; these two conclusions are contained in adjoining paragraphs on p. 4 of the report!)  Either the "integrity of the House" is already so sullied that you can be a present danger to it and still reflect creditably on it, or the report's line-drawing is so arbitrary that only a lawyer could understand it (or write it).

    But the real failure of the ethics committee investigators is they did exactly what they criticize other House members and staff of doing.  The committee criticizes "a disconcerting unwillingness to take responsibility for resolving issues regarding Rep. Foley's conduct. Rather than addressing the issues fully, some witnesses did far too little, while attempting to pass the responsibility for acting to others.  Some relied on unreasonably fine distinctions regarding their defined responsibilities" (p. 70).

    Et tu, committee members? The report is chockful of excuses why the committee chose not to follow the most damning leads, even while finding fault in others for doing exactly the same thing. Rather than learn the full extent of Foley's misconduct with House pages, committee members remarkably chose not to investigate the sexually explicit IMs between Foley and former pages that actually led to his resignation. 

    Oh, they claim to have "devoted substantial effort to determining whether any House member, officer or employee was aware of or saw the sexually graphic instant messages" (p.74).  But that "substantial effort" apparently amounted only to asking those already implicated by Foley-gate to 'fess up to what they knew.  The committee admits that it "did not seek to investigate fully all instances in which Rep. Foley may have had improper communications with pages or former pages, or to determine the complete facts and circumstances surrounding the instant messages that were the cause of his resignation" (p. 72). 

    The committee's excuse?  Foley had resigned and so was outside their jurisdiction.  Sound like "unreasonably fine distinctions regarding their defined responsibilities"?  How could the committee hope to know if House members and staff, including in the Republican leadership, knew about sexually explicit IMs without first nailing down (1) all the instances when Foley sent such IMs; and (2) who the recipients might have told or forwarded copies of the communications?

    A similar escape clause is adopted when it comes to Jim Kolbe, the other openly gay House Republican, who was identified by (also gay) chief House Clerk Jeff Trandahl as among those with unseemly interest in teenage pages.  The committee admits that during its investigation of Foley, it learned about "allegations made regarding Kolbe and his interaction with former House pages" (p. 77), but still chose not to investigate.

    The committee's excuse?  Kolbe is already under a criminal probe and he's retiring at the end of his term anyway, putting him outside the committee's jurisdiction (p78).  Sound like "attempting to pass the responsibility for acting to others"?  How could the commitee know without investigating whether current House members and staff, including in the same Republican leadership, knew about Kolbe's alleged misconduct and failed to act?

    By putting all these unduly restrictive limits on its investigation, the House ethics committee ultimately sends exactly the wrong message to members of Congress and their staff.  Because the real takeaway here is that if you're going to willfully ignore signs that a congressman is engaging in improper conduct, you better hope the conduct you're ignoring is so bad that the congreassman is forced to resign or is subject to a criminal probe, preferably both. That's the surest way to avoid the watchful oversight of the House ethics committee.



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    1. Andoni on Dec 9, 2006 4:02:38 PM:


      What I would like to see (and I’m probably dreamin’) is Pelosi form an entirely new Ethics Committee in the new Congress and have that committee investigate the ethics of the prior Ethics Committee in producing that shameful report.

      In reality, I believe what happened in the Foley report is that it is really two separate reports, one from the Republicans and one from the Democrats that got collated in order to reach consensus and not have to report out a stalemate.

      The Republican report was probably: 1. nothing really bad happened 2. therefore no punishment is necessary. The Democratic report was probably: 1. bad things happened 2. certain people were responsible for it and should be punished. In typical committee results we got part 1 of the Democrats and part 2 from the Republicans and that would explain the schizophrenic results and internal contradicitions.

      I think that Congress should just admit that it cannot legitimately investigate itself and appoint an outside impartial team of law professors to look into the Foley matter.

    1. Tim on Dec 10, 2006 2:54:30 PM:

      Your talking about a political entity in which you can be found with 90K in your freezer and the real crime is that someone had the audacity to enter his office. No one has any interest in making themselves more liable to the same laws they pass on the common folk.

    1. Tim C on Dec 10, 2006 10:00:33 PM:

      Kolbe is still under investigation? I can't find any story on that more recent than mid-October, and everyone on the trip seems to have said nothing happened. I wonder what's left to investigate. I'd rather than take the agents working a Kolbe case and point them at William Jefferson. How can a man be in prison for bribing a Congressman and that Congressman hasn't been indicted yet?

    1. Citizen Crain on Dec 11, 2006 8:49:55 AM:

      I think that may be wishful thinking, Andoni. My own theory is that the Democrats agreed to de-fang the report, finding no rule violations, because Hastert et al. were dethroned by voters and all are in "bipartisan mode" now. I think the outcome of the report would have been very different — with Republicans less willing to find fault in Hastert's staff and Democrats pushing more for violations and punishment — if Congress hadn't changed hands.

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