[House Report 117-387]
[From the U.S. Government Publishing Office]
House Calendar No. 85
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-387
_______________________________________________________________________
IN THE MATTER OF ALLEGATIONS
RELATING TO DELEGATE
MICHAEL F.Q. SAN NICOLAS
__________
R E P O R T
of the
COMMITTEE ON ETHICS
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June 24, 2022.--Referred to the House Calendar and ordered
to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
29-006 WASHINGTON : 2022
COMMITTEE ON ETHICS
THEODORE E. DEUTCH, Florida, JACKIE WALORSKI, Indiana,
Chairman Ranking Member
SUSAN WILD, Pennsylvania MICHAEL GUEST, Mississippi
DEAN PHILLIPS, Minnesota DAVE JOYCE, Ohio
VERONICA ESCOBAR, Texas JOHN H. RUTHERFORD, Florida
MONDAIRE JONES, New York KELLY ARMSTRONG, North Dakota
REPORT STAFF
Thomas A. Rust, Chief Counsel/Staff Director
Brittney Pescatore, Director of Investigations
David Arrojo, Counsel to the Chairman
Kelle Strickland, Counsel to the Ranking Member
Janet M. Foster, Senior Counsel
C. Ezekiel Ross, Senior Counsel
Caroline Taylor, Investigator
Peyton Wilmer, Investigative Clerk
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on Ethics,
Washington, DC, June 24, 2022.
Hon. Cheryl L. Johnson,
Clerk, House of Representatives,
Washington, DC.
Dear Ms. Johnson: Pursuant to clauses 3(a)(2) and 3(b) of
rule XI of the Rules of the House of Representatives, we
herewith transmit the attached report, ``In the Matter of
Allegations Relating to Delegate Michael F.Q. San Nicolas.''
Sincerely,
Theodore E. Deutch,
Chairman.
Jackie Walorski,
Ranking Member.
C O N T E N T S
Page
I. INTRODUCTION................................................ 1
II. FINDINGS.................................................... 3
III. CONCLUSIONS................................................. 4
IV. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(c)................ 6
APPENDIX A: REPORT OF THE INVESTIGATIVE SUBCOMMITTEE............. 8
House Calendar No. 85
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-387
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IN THE MATTER OF ALLEGATIONS RELATING TO DELEGATE MICHAEL F.Q. SAN
NICOLAS
_______
June 24, 2022.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Deutch, from the Committee on Ethics,
submitted the following
R E P O R T
In accordance with House rule XI, clauses 3(a)(2) and 3(b),
the Committee on Ethics (Committee) hereby submits the
following Report to the House of Representatives:
I. INTRODUCTION
On October 24, 2019, the Committee announced an
investigation, pursuant to Committee Rule 18(a), into
allegations that Delegate San Nicolas may have converted
campaign funds to personal use, accepted improper or excessive
campaign contributions, and/or engaged in a sexual relationship
with a congressional employee who works under his supervision.
On February 10, 2020, OCE sent a Referral to the Committee
recommending further review of similar campaign finance
allegations involving Delegate San Nicolas. On June 12, 2020,
the Committee announced that it had impaneled an investigative
subcommittee (ISC) with jurisdiction to investigate allegations
that Delegate San Nicolas violated campaign finance and
campaign reporting laws, made false statements to government
investigators or agencies, engaged in witness interference, and
had a sexual relationship with an individual on his
congressional staff. On May 20, 2022, the Committee announced
it had reauthorized the ISC. The ISC conducted a thorough
investigation over the course of two years, in which it
interviewed 11 witnesses and reviewed over 5,000 pages of
documents.
During its investigation, the ISC was presented with
substantial evidence that Delegate San Nicolas may have
knowingly solicited and accepted excessive and improper
campaign donations, orchestrated a conspiracy to mask those
unlawful donations by attributing them to unrelated
fundraisers, and engaged in witness interference by directing
congressional staffers to contact a key witness in a blatant
attempt to dissuade them from providing testimony that would
incriminate Delegate San Nicolas in connection with ongoing
congressional investigations.\1\ Delegate San Nicolas did not
meaningfully address the allegations against him, and chose to
ignore a duly authorized subpoena rather than account for his
conduct.\2\ The ISC referred Delegate San Nicolas to the full
Committee for consideration of contempt due to his failure to
appear for his subpoenaed deposition. Over a month later, on
the eve of the Committee's consideration of this matter, the
Delegate's counsel reiterated numerous technical challenges to
the ISC's subpoena and stated the Delegate would ``welcome''
the opportunity to provide testimony ``subject to any
objections he may assert.'' The Committee recognizes this as
yet another delay tactic and notes that this matter has been
pending for over two years, during which time Delegate San
Nicolas has never substantively responded to most of the
allegations raised against him. The Committee concurred with
the ISC's determination that the Delegate's behavior was
contemptuous.\3\ Moreover, despite his counsel's assurance of
the Delegate's ``steadfast commitment to the Committee's
crucial constitutional function,'' the Delegate has treated the
ethics process with disdain. The Delegate's counsel, without
citation, disputes the ISC's assertion that his refusal to
provide voluntary testimony is uncommon, stating that ``there
are numerous examples of Members who assert their legal right
not to provide voluntary testimony.'' That statement
demonstrates that the Delegate does not appreciate the unique
role of this Committee. The Committee is not aware of a single
other Member in recent history who refused to provide voluntary
testimony to the Ethics Committee.\4\ When a Member is the
subject of an investigation by the Ethics Committee, they have
a duty of candor and diligence; the Delegate did not meet that
duty.
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\1\See generally ISC Report.
\2\ISC Report at 14-16.
\3\Delegate San Nicolas was informed that the ISC referred him to
the Committee for consideration of contempt, pursuant to Committee Rule
19(b)(3), and was provided an opportunity to submit a written statement
following that notice but did not do so.
\4\Although the Committee has previously issued a subpoena for a
Member's testimony in a 2004 matter, the Committee did not ask that
Member to testify voluntarily. See Comm. on Standards of Official
Conduct, Investigation of Certain Allegations Related to Voting on the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003,
H. Rept. 108-722, 108th Cong. 2d Sess. 13 (2004) (``No Member of the
House that was asked to provide voluntary testimony declined to do so;
indeed, no Member who testified voluntarily offered any resistance to
testifying or any objection to questions posed to them.'').
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The ISC considered recommending the Committee seek a House-
level sanction of Delegate San Nicolas for violations of
federal laws and regulations, as well as the Code of Official
Conduct. The ISC determined, however, that would not be the
most effective action in light of the Delegate's impending
retirement from the House, as well as the potential expiration
of applicable statutes of limitations as soon as next year for
some of the conduct at issue.\5\ Given those time constraints,
as well as the extraordinary nature of the allegations, the ISC
unanimously voted to recommend that this matter be referred to
the Department of Justice.\6\ The Committee agrees with the
ISC's findings and recommendations.\7\
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\5\ISC Report at 2, 16.
\6\Id. at 16
\7\The Committee thanks the Members of the ISC for their attention
and dedication to this matter.
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Accordingly, on June 23, 2022, the Committee unanimously
voted to adopt this Report, refer the matter to the Department
of Justice, and release the ISC's Report, which is transmitted
as an appendix to this Report.\8\
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\8 \See Appendix A.
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II. FINDINGS
The Committee received substantial evidence that Delegate
San Nicolas may have accepted improper and/or excessive
campaign contributions in connection with his solicitation and
acceptance of cash contributions totaling at least $9,000 from
a single donor during the 2018 election cycle.\ 9\ The ISC
collected substantial evidence that Delegate San Nicolas knew
that acceptance of the cash contributions violated applicable
campaign finance laws but nevertheless solicited and accepted
the contributions to advantage his campaign as the general
election approached.\10\
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\9\ ISC Report at 6-9
\10\See id.
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The Committee also received substantial evidence that
Delegate San Nicolas may have engaged in a conspiracy to hide
the proceeds of those illicit campaign contributions and
knowingly caused his campaign committee to file false or
incomplete reports with the Federal Election Commission.
Specifically, the Committee received substantial evidence that
Delegate San Nicolas sought the improper donation in cash so
that his campaign could avoid disclosing the specific
contributions, including by falsely reporting a portion of the
illicit donation as proceeds of a small dollar fundraiser held
on or around September 28, 2018.\11\ Delegate San Nicolas'
campaign failed to properly report the contributions for
approximately two years.\12\
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\11\Id.
\12\Id.
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The Committee also received substantial evidence that
Delegate San Nicolas improperly interfered, or attempted to
interfere, with the Committee's investigation. As discussed in
the ISC's Report, there is substantial evidence that Delegate
San Nicolas dispatched one of his congressional staffers to
``deliver a message'' to the donor of the $9,000 cash campaign
donation that the contribution ``never happened.''\13\ The
Committee also received substantial evidence that Delegate San
Nicolas, through his campaign committee, asked the donor to
sign a prepared letter containing false statements about the
campaign donation and the Delegate's knowledge thereof.\14\
Both attempts to contact the campaign donor about his donation
occurred after the Committee had initiated its review and after
OCE initiated a second-phase review, thus requiring a Referral
to the Committee.\15\
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\13\Id. at 10-11.
\14\Id.
\15\See id.
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Delegate San Nicolas' conduct may have violated several
campaign finance laws, federal conspiracy law, and laws against
witness tampering and obstruction of Congress.
The ISC also investigated several additional allegations,
including whether Delegate San Nicolas had a sexual
relationship with a staffer in his congressional office,
whether Delegate San Nicolas misappropriated campaign funds for
personal use, and whether Delegate San Nicolas used a campaign
vendor to inflate campaign invoices and receive kickbacks for
the purchase of campaign materials.\16\ The Committee agrees
with the ISC that the evidence it has collected regarding some
of these additional allegations is concerning and Delegate San
Nicolas' decision not to meaningfully address the allegations
is alarming. The Committee also agrees, however, that ``the
interests of justice would best be served by prioritizing the
substantial evidence'' the Committee has received relating to
the Delegate's acceptance of illicit campaign contributions,
his conspiracy to hide those proceeds, and witness
interference.
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\16\Id. at 13-14.
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III. CONCLUSIONS
House rule XI, clause 3(a)(3) states that ``[t]he Committee
may report to appropriate Federal or State authorities by an
affirmative vote of two-thirds of the members of the committee,
any substantial evidence of a violation by a Member, Delegate,
Resident Commissioner, officer, or employee of the House, of a
law applicable to the performance of the duties or the
discharge of the responsibilities of such individual that may
have been disclosed in a committee investigation.''\17\ The
evidence collected by the ISC supports a criminal referral in
the instant matter.
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\17\House Rule XI, clause 3(a)(3); see also Committee Rule 28.
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The Committee has previously uncovered evidence during its
investigations of potential federal criminal violations by non-
House individuals and referred such conduct to the Department
of Justice.\18\ The Committee has also regularly deferred its
investigations in order to permit the Department of Justice to
complete its prosecution of criminal matters. Nonetheless, the
Committee recognizes it is an extraordinary step to refer a
sitting Delegate of the House to another federal authority.
However, Delegate San Nicolas has engaged in extraordinary
conduct, not only with respect to the excessive cash campaign
contribution and his efforts to influence witness testimony,
but also with respect to his failure to meaningfully address
the allegations before the Committee and by contemptuously
ignoring a duly authorized subpoena.
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\18\See Comm. on Ethics, In the Matter of Officially-Connected
Travel by House Members to Azerbaijan in 2013, H. Rept. 114-239, 114th
Cong. 1st Sess. 26 (2015) (referring ``evidence of concerted, possibly
criminal efforts by various non-House individuals and entities to
mislead the House travelers and the Committee about the Trips' true
sponsors and the funding sources used to pay for Member and House
employee travel to Azerbaijan.''); See House Comm. on Standards of
Official Conduct, Investigation into Officially Connected Travel of
House Members to Attend the Carib News Foundation Multi-National
Business Conferences in 2007 and 2008, H. Rept. 111-422, 111th Cong. 2d
Sess. 5 (2010) (referring the conduct of ``officers and employees'' of
private trip sponsors after finding they ``submitted false or
misleading information to the Committee during its pre-travel review .
. . and again when providing sworn testimony to the Investigative
Subcommittee.'').
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In 2019, during OCE's investigation, Delegate San Nicolas
advised, on the eve of his OCE interview, that he would not
appear. In explaining his decision not to appear before OCE,
Delegate San Nicolas asserted that he would ``happily engage
and cooperate fully with an official Investigative Subcommittee
of the Ethics Committee that is capable of initiating my
desired closure in this matter.''\19\ Delegate San Nicolas did
not cooperate fully with the ISC or the Committee, and the ISC
took the rare step of issuing a subpoena for Delegate San
Nicolas' testimony, with which the Delegate did not comply.\20
\ The Delegate raised a number of objections to his subpoenaed
testimony that were overruled by the ISC. The ISC informed the
Delegate of that decision and noted that it would not allow its
investigation to continue to be hindered by delay tactics, and
it was prepared to conclude its inquiry without the Delegate's
testimony. As noted above, on the eve of the Committee's
deliberation on this matter, the Delegate's counsel stated that
he would ``welcome the opportunity'' to schedule a deposition
``subject to any objections he may assert at the time.'' The
ISC also advised the Delegate of the option to provide a
written statement in response to the allegations, under oath or
affirmation. The Delegate never submitted a statement
responding to the allegations. In short, Delegate San Nicolas
appears to have treated the House ethics process with the same
indifference that he treated federal campaign finance laws.
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\19\ISC Report at 15.
\20\See id. at 14-15.
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The Committee has previously explained:
Public office is a public trust, and as part of that
public trust, public officials should take seriously
allegations that threaten the integrity of the
institution and seek to be forthright and cooperative
with the body designed to review such allegations. . .
. It is the nature of a self-regulatory body to strive
to collegially review allegations of misconduct and,
accordingly, the Committee's longstanding practice is
to seek voluntary cooperation from respondents. When
that cooperation is less than fulsome, that threatens
to undermine the foundations of that self-
regulation.\21\
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\21\Comm. on Ethics, In the Matter of Allegations Relating to
Representative David Schweikert, H. Rept. 116-465, 116th Cong., 2d
Sess. 108 (2020) (hereinafter, Schweikert). See also Comm. on Ethics,
In the Matter of Allegations Relating to Representative Laura
Richardson, H. Rept. 112-642, 112th Cong., 2d Sess. (2012).
The House has a mandate pursuant to Article I, Section 5,
clause 2 of the Constitution to police the behavior of its own
Members. The House has charged the Committee on Ethics with the
duty of investigating Member conduct in service of that
constitutional mission. As the only standing committee of the
House with membership divided evenly by party, the Committee on
Ethics is unique, and operates under rules and processes that
are intended to provide a fair procedural framework for the
conduct of the Committee's activities. All Members have a duty
to respect the rules of the Committee on Ethics and the House's
self-disciplinary process by demonstrating candor and diligence
in an investigation of their conduct by the Committee on
Ethics. A Member's failure to meet their duty of candor and
diligence in an investigation of the Committee on Ethics can,
in itself, be a violation of House Rules and lead to
sanctions.\22\ When a Respondent acts in a manner that
obstructs or undermines the work of the Committee on Ethics,
they bring discredit to the House. The Committee takes this
opportunity to note to the House community that it will use
appropriate disciplinary tools at its disposal to address such
conduct.
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\22\Schweikert at 5.
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Delegate San Nicolas failed to fulfill his duty of candor;
rather than fully cooperate with the ISC's investigation, he
has repeatedly sought to evade and obstruct review of his
conduct. While the Delegate engages in delay tactics, the
statute of limitations for the potential criminal conduct at
issue continues to tick away and may expire next year for some
of the allegations and in 2024 for others. The Committee joins
the ISC in noting that ``it would not be in the interests of
justice to allow [Delegate San Nicolas] to continue to evade
accountability for his actions by delaying this review while
the statute of limitations continues to run.''\23\
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\23\
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The Committee, accordingly, voted unanimously to refer this
matter to the Department of Justice. The Committee also agrees
that the Delegate's conduct merits public condemnation, and
will publicly release this Report attaching the ISC's Report.
Following the publication of this Report, the Committee
will consider this matter closed.
IV. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(c)
The Committee made no special oversight findings in this
Report. No budget statement is submitted. No funding is
authorized by any measure in this Report.
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