[Congressional Record Volume 142, Number 104 (Tuesday, July 16, 1996)]
[House]
[Pages H7653-H7655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       HOUSE ETHICS INVESTIGATION

  The SPEAKER pro tempore (Mr. Longley). Under the Speaker's announced 
policy of May 12, 1995, the gentleman from Washington [Mr. McDermott] 
is recognized for 60 minutes as the designee of the minority leader.
  Mr. McDERMOTT. Mr. Speaker, tonight I would like to talk about the 
process of the Ethics Committee. I have sat on the Ethics Committee for 
6 years. At various times I have been a member, a ranking member, and, 
in one 2-year period. I was the chair. So I speak with a broad 
experience on the affairs of the Ethics Committee.

[[Page H7654]]

  For me to speak on this issue is an unusual circumstance but these 
are unusual times. The charge of the Ethics Committee is to protect the 
integrity of the House and to deal fairly with the Members charged 
before this committee. A part of fairness is dealing expeditiously and 
thoroughly with charges brought to the committee. The appearance of 
fairness and thoroughness and impartiality is essential to any effort 
by the committee if the committee expects either the Members or the 
public to accept the results of the evaluation of any charge.
  To adequately fulfill these two obligations, there has evolved a 
process for responding to allegations against a Member. The standing 
Ethics Committee is a relatively recent phenomenon. Before 1968, ethics 
complaints were handled in a variety of ways. There was a use of 
special committees or subcommittees of the Committee on the Judiciary, 
but since 1969, the Ethics Committee is a relatively recent phenomenon. 
Before 1968, ethics complaints were handled in a variety of ways. There 
was a use of special committees or subcommittees of the Committee on 
the Judiciary, but since 1969, the Ethics Committee has functioned on a 
bipartisan basis, composed of equal numbers of Democrat and Republican 
Members. This structure is unique in this partisan body because neither 
side by force of majority can exert its will. There must be 
cooperation.
  Now, undeniably, in controversial cases, partisan feelings arise and 
cooperation becomes strained. Over the last 20 years, a mechanism has 
been developed to deal with such complicated or contentious cases and 
that is the appointment of a special outside counsel.
  When partisanship has disrupted reasoned evaluation of the facts, the 
committee rightly has resorted to independent outside counsel on 10 
occasions over the last 20 years, the Ethics Committee has chosen to 
seek outside counsel to resolve partisan differences and to ensure that 
the truth is presented to the Congress and to the American people.
  Doing so is nothing new, extraordinary or prejudicial. It is 
instructive, I think, to review those 10 instances.

  Here is a list of the cases in which outside counsel was appointed by 
the House Ethics Committee:
  In the matter of the complaint against Representative L. F. Sikes in 
1976, the Ethics Committee hired William Geoghegan.
  In the Korean influence investigation in 1977, the Ethics Committee 
hired Phillips Lacovara and John Nields.
  In the matter of Congressman Charles C. Diggs, the Ethics Committee 
hired William Geoghegan.
  In the matter of Abscam in 1980, the Ethics Committee hired E. 
Barrett Prettyman.
  In the matter of Congressman Daniel J. Flood in 1979, the Ethics 
Committee hired David M. Barrett.
  In the matter of Congressman George V. Hansen, 1984, the Ethics 
Committee hired Stanley Brand.
  In the investigation of financial transactions participated in and 
gifts of transportation accepted by Congressman Fernand J. St Germain 
in 1987, the Ethics Committee hired Johnnie L. Cochran.
  In the investigation, pursuant to House Resolution 12, concerning 
alleged illicit use and distribution of drugs by Members of the House, 
the so-called page scandal in 1983, the Ethics Committee hired Joseph 
Califano.
  In the matter of Speaker Jim Wright in 1988, the Ethics Committee 
hired Richard Phelan.
  And lastly, regarding complaints against Representative Newt Gingrich 
in 1989, the Ethics Committee hired the firm of Phelan and John.
  The results are history. In every instance, outside counsel treated 
the accused Member fairly but got to the truth when the committee 
itself was unable to. In many instances, outside counsel's 
recommendation on specific charges were accepted and in others they 
were narrowed or dropped.
  This is not unlike disputes in a variety of settings where parties 
are unable to reach an agreement and an arbiter is sought. In families, 
in churches, in universities, in legal disputes, and even in sports, 
the ref's or the ump's decision is final.
  Committees in most situations are set up with odd numbers of members 
so that differences of opinion can be resolved by a majority rule. That 
is how this body operates in most situations. In those areas where 
committees are set up with an even number of members, the obvious hope 
is that decisions will be reached by consensus or the committee will 
resort to an outside arbiter.
  The advantages realized by the House and the committee in seeking 
outside counsel are numerous. The House receives the advice and counsel 
of a jointly selected examiner who comes to the investigation devoid of 
the discomfort and understandable bias that committee members might 
bring to such an investigation.
  In addition, the counsel assists the committee to understand and to 
winnow the allegations and the application of overlapping rules, 
statues and standards of conduct to very complex facts. Counsel 
selected in such a manner can be both fair and thorough, which in turn, 
in my belief, offers the best chance that the concluding decision of 
the committee will be deemed a just result.
  Once counsel is selected, the question before the committee is, what 
shall be the scope of the counsel's investigation and what shall be his 
or her authority.
  Mr. Gingrich, in 1988, wholeheartedly endorsed the answer to this 
question proposed by former Attorney General of the United States, 
Archibald Cox, who as head of Common Cause suggested the following in a 
letter to Chairman Dixon:

  The outside counsel, and I quote, shall have full authority to 
investigate and present evidence and arguments before the Ethics 
Committee concerning the questions arising out of the activities of a 
member.
  The outside counsel shall have full authority to organize, select and 
hire on a full or part-time basis in such numbers as the counsel 
reasonably requires.
  The outside counsel shall have full authority to review all 
documentary evidence available from any source and full cooperation of 
the committee in obtaining such evidence.
  The committee shall give the outside counsel full cooperation in the 
issuance of subpoenas.
  The outside counsel shall be free, after discussion with the 
committee, to make such public statements and reports as the counsel 
deems appropriate.
  The outside counsel shall have full authority to recommend that 
formal charges be brought before the Ethics Committee, shall be 
responsible for initiating and conducting proceedings, if formal 
charges have been brought, and shall handle any aspect of the 
proceedings believed to be necessary for a full inquiry.
  The committee shall not countermand or interfere with the outside 
counsel's ability to take steps necessary to conduct a full and fair 
investigation.
  Mr. Cox goes on to say: The outside counsel will not be removed 
except for good cause.
  Because Congressman Gingrich felt the committee was not going to 
adhere to the principles outlined by Mr. Cox, he wrote Chairman Dixon 
to raise his concerns and closed his letter with the following 
statement:
  The rules normally applied by the Ethics Committee to an 
investigation of a typical Member are insufficient in an investigation 
of a Speaker of the House, a position which is third in line of 
succession to the presidency and the second most powerful elected 
position in America. Clearly, this investigation has to meet a higher 
standard of public accountability and integrity.
  As usual, Mr. Gingrich was eloquent and his logic was unassailable. I 
think, Mr. Speaker, that all Members of this body would heartily and 
readily agree with the words of Mr. Gingrich.
  With respect to unresolved matters, the committee has only three 
options. Either to refer to the outside counsel those issues which 
remain unresolved or to leave those issues unresolved or to report back 
to the House the committee's inability to resolve the charges before it 
and ask for further direction.
  The first option, that of referring to the outside counsel, has been 
used in the past on a number of occasions, as I outlined, and has been 
used in a bipartisan way to resolve very thorny issues. The process has 
been led by an individual whose livelihood and success does not depend 
on the good graces of

[[Page H7655]]

the chair or the ranking member. In short, the Member, the committee, 
the House and the public must have confidence in the professionalism, 
integrity, open-mindedness of the outside counsel. Referral to an 
outside counsel must, and I emphasize, must be considered a judgment 
that the matter merits further inquiry, nothing more.
  The second option, that of leaving the matter unresolved, is totally 
unacceptable, since it reduces the Ethics Committee to the Committee on 
Frivolous Complaints and Rule Interpretation.
  The committee is able to deal only with issues over which there is no 
controversy because either party can, by a 5-to-5 vote, prevent the 
resolution of any serious or difficult issue before it. If one side 
feels there is an issue that merits further inquiry and the other does 
not, the issue will simply die in the lap of the chair. If that 
happens, the chair of the committee will have destroyed the Ethics 
Committee by failing to lead the committee to a resolution of an issue 
of major importance.

  The third option is reporting back to the House the committee's 
inability to resolve an issue either by consensus or by referral to the 
outside counsel. The report to the House can be made either in open 
session or in executive session in the House Chambers. This latter 
course could be followed since an ethics charge could arguably be 
considered a personnel matter and the Member is entitled to have it 
aired in secret, as the Ethics Committee operates.
  In a session before the House, the committee could receive direction 
by the House as to whether the matters should be referred to the 
outside counsel or follow some other course of action, such as 
dismissal of all remaining charges by a vote of the House in secret 
session.
  Being on the Ethics Committee is not a sought-after plum assignment 
in the House of Representatives, but it is a job that must be done. 
Attacks on members of the Ethics Committee by either side of the aisle 
must be viewed with great skepticism.
  Recently, on July 27, some of my colleagues put out a Dear Colleague 
letter in which they said, Over the past two years a systematic and 
coordinated effort has been undertaken to impugn the integrity of 
Speaker Gingrich.
  In fairness to the Speaker and with respect to the ethics process, 
they suggest that I recuse myself from this process.
  These recent attacks on me are simply attempts by zealous and 
uninformed Members of the House to destroy the Ethics Committee before 
it completes its work on unresolved matters.

                              {time}  2230

  This kind of misguided activity will accomplish nothing but damage to 
the reputation of every Member of the House.
  I am really quite honored that after a thorough review of my office 
and campaign and financial disclosure forms, those who seek to destroy 
the committee could come up with so little in their vain attempt to 
discredit the committee. I am here tonight to state that the House 
should have a report from the Committee on Standards of Official 
Conduct on matters unresolved before it, so that the House can further 
instruct the committee on how to proceed.

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