Would Justice Clean the House?

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The Justice Department has a message for Congress: clean up your house or else we may have to do it for you. A senior federal law enforcement official told TIME that the paralyzed and often lax House ethics committee has created a vacuum that prosecutors won't hesitate to fill. The House’s internal mechanism for keeping corruption in check is "broken," says the official.

By contrast, current criminal probes of lawmakers are expanding rapidly. Like the Abramoff probe, the investigation into former Republican Representative Randy “Duke” Cunningham from San Diego is also widening. Last week, defense contractor Mitchell Wade of MZM, Inc., pleaded guilty to supplying more than $1 million of the $2.4 million in bribes Cunningham previously admitted taking in a scheme that touches Defense Department officials and two other members of Congress. A Defense Department spokesman tells TIME that "there is an ongoing review by appropriate organizations within the Department" as to whether the Cunningham- and MZM-linked intelligence contracts would have compromised any Pentagon intelligence programs.

But in a body that likes to think it can police itself, some wonder if prosecutors are overreaching. The Justice Department has “every right to investigate when a law is being broken,” says a senior House GOP aide, “However, there is a feeling that they may be crossing boundaries into where the ethics committee should be performing. And it's just another reason why the ethics committee needs to get up and running.”

Staff of the ethics committee—which is only beginning to get up and running after a partisan deadlock that's lasted for 13 months—did not return phone calls Friday for comment. Jan Baran, an attorney who has often represented elected officials caught in ethics cases, said Justice may be “saber rattling” since the ethics panels cover congressional rules and not criminal offenses, which are Justice's province alone. But if Justice is really just trying to warn Congress to crack down on sleazy conduct, “I think they're correct.... Not only the Department of Justice, but I think the public is telling Congress: if you're going to have some rules make sure people obey them.”

The House and Senate ethics committees—the only panels with equal numbers of Republicans and Democrats, regardless of who holds the majority—enforce the ethics rules each chamber sets up to govern members’ conduct. This runs from governing the use of official expense accounts and payroll to determining when a congressman or an aide must recuse himself from official action to avoid a conflict (answer: rarely). The most basic stricture of House ethics guidelines gives the ethics committee leeway to act or not act in almost any case. It requires that a congressman “shall conduct himself at all times in a manner which shall reflect creditably on the House of Representatives.” In more extreme cases, they investigate colleagues and recommend punishments that range from barely a wrist-slap to expulsion. The panels sometimes seem moved to action as much by a frenzy of press attention to a specific case as by its severity. But any reluctance to act goes deeper than the cronyism that often appears to permeate the process; there is a reluctance in Congress to appear to be using the ethics committees to essentially overturn voters’ choice in a given district. For the same reason, Justice, too, has generally been loath to move precipitously against congressmen. And there is always tension between the Justice Department and the ethics committees, with the congressional panels usually holding off on investigating or punishing a congressman caught up in a criminal probe—and then acting based on whether or not the member is convicted.

When a congressmen face criminal charges, they often argue in court—usually unsuccessfully—that their conduct in Congress should be adjudicated by the ethics committee (which can’t throw anyone in jail) rather than the criminal court system. The underpinning of this is a provision of the Constitution, intended to keep Congress independent, that “granted a limited immunity to Members of Congress from prosecution when the conduct involved official legislative activities. The so-called ‘speech or debate’ clause immunity provides that a Member ‘shall not be questioned in any other place’ concerning official legislative conduct,” as a congressional report explains.

But with the House ethics committee stalled for so long, new pressure on House members to jump start their internal ethics oversight comes in the form of widening justice probes into their behavior. Wade, former CEO of defense contractor MZM, pleaded guilty to bribing Cunningham and told investigators about how he reimbursed employees who gave to the campaigns of influential representatives. Records released in the Wade plea suggest the House Members are GOP Reps. Katherine Harris of Florida and Virgil Goode of Virginia. Harris released a statement Friday calling the revelations in the Wade plea “an unfortunate reality.... I am confident justice will prevail and the guilty parties will be properly punished." Harris said she had attempted to refund the donations after press accounts first called them into question some time ago, before “voluntarily deciding to donate the full amount of these funds to charity.” Goode issued a statement on Friday saying he had donated all MZM-related campaign contributions to charity. Goode could not be reached for comment—but seems to acknowledge he'd been tight with Wade by calling him “Mitch” in the statement, which appears to be on official House letterhead instead of the campaign stationery that’s normally used for fundraising matters.

There is no indication that Harris or Goode are targets in the investigation, but when asked whether it was safe to presume that Goode's statement confirms that he's one of the unnamed congressmen mentioned in the Wade charges, a Goode aide who furnished the statement said, “I don't feel comfortable answering that.” Neither, it appears to federal prosecutors, is the House ethics committee.