A few weeks back, I wrote a piece for Slate calling out President Obama for not living up to his pledge to provide a more transparent government. In the process, I noted that several nonprofits have been ignoring the President’s failure in this matter, with one even coming to aid the administration when Congress has demanded information during a federal investigation of a failed program called Fast and Furious.
Why a small nonprofit would feel the need to rush to aid the most powerful man running the world’s most powerful country is beyond bizarre. But the partisan nature of Washington sometimes fouls people’s thinking.
Specifically, Congress has been demanding documents explaining why the Department of Justice—perhaps guided by the White House—provided false and misleading information to the Senate Judiciary Committee, whose staff were investigating Fast and Furious. Providing false and misleading information to Congress can result in prosecution.
The Fast and Furious investigation has been called “partisan” by self-appointed watchdog Melanie Sloan who runs Citizens for Responsibility and Ethics in Washington (CREW). Ms. Sloan later filed an ethics complaint against Representative Darrell Issa (Rep-CA) when he released portions of documents sealed by a court. At the time, the administration was stating that officials in Washington knew little, if anything, about the program, and to prove them wrong, Representative Issa released documents that had the signature of officials in Washington who approved the failed program.
Still, the White House would not disclose all the information requested by Congress, forcing the House to find the Attorney General in contempt of Congress. The whole issue has now moved to the courts where the House and Department of Justice will litigate whether the documents must, in fact, be turned over to Congress.
This back and forth between Congress and the administration is fascinating because it provides a lens into how congressional staffers investigate possible wrongdoing, doing so without running into their own legal problems.
Fast and Furious: A Failed Program
First, some history: in early 2010, agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) met with investigators working for Senator Charles Grassley (Rep-IA). In these meetings, they explained that their agency was part of a bizarre attempt to track weapons into Mexico by letting them fall into the hands of gun traffickers. The Senator then sent a letter to the Department of Justice asking for an explanation. Some months later, the Department of Justice responded with information that was false and misleading.
At this point, the investigation had to begin following two tracks. First, congressional investigators wanted to understand why the administration was running a program that allowed guns into Mexico. Second, investigators working for Grassley had to figure out why the administration was lying. Was it just a mistake, or were official in Justice trying to willfully hide something from Congress? The answer to the first question eventually became pointless when the administration shut down the Fast and Furious program.
However, Congress persisted in asking questions about the false letter that Justice sent Senator Grassley. Justice later withdrew that letter, but did not offer enough documents to explain why they had sent it in the first place.
Because Republicans are in the minority in the Senate, Grassley eventually exhausted his ability to demand documents from Justice. However, Republicans are in the majority in the House, meaning Representative Issa could send subpoenas to Justice demanding internal documents explaining why Justice lied.
To make the point that officials high in Justice probably knew what was going on at the time Fast and Furious was running, Issa put information from Fast and Furious wiretaps in the congressional record, noting that these wiretaps were signed off by top Justice officials. Someone inside Justice apparently leaked the wiretaps to Issa’s staff. In response, Melanie Sloan filed an ethics complaint against Issa complaining that he may have violated the law by releasing these court sealed documents.
But is this true?
Protecting Your Boss and Advancing an Agenda: How Staff Release Documents and Information
The power of Congress to investigate is implied rather than stated in the Constitution. But the media is incredibly important to this process because without the media, you cannot apply pressure to an agency or company. To advance this agenda, staff regularly release information to the media, operating under the “Speech or Debate Clause.”
This process of releasing information is shrouded in much secrecy, and even discussions between lawyers who represent Congress can lead to different opinions about what can be released and how. But the main ways to release information without incurring a lawsuit include: speaking from the floor and placing information into the congressional record, speaking during a Committee hearing and putting documents into the Committee record, or releasing information through official Committee action. Official Committee action is difficult to describe in detail because official action invariably includes reviewing the Committee rules, which vary across Committees.
A few examples should illustrate this process.
In the mid-nineties, Representative Henry Waxman (Dem-CA) received documents that were apparently stolen during litigation with tobacco companies. The documents showed that tobacco companies had manipulated nicotine levels. To make the information public and protect himself from possible reprisal, Mr. Waxman published the documents in the congressional record. Nonetheless, the companies attempted to compel Mr. Waxman to disclose who leaked him the documents. That subpoena was later quashed as Mr. Waxman was protected by “speech or debate.”
In a separate matter, I once wanted to release information, while on the Senate Finance Committee, regarding a physician who had taken enormous sums from several pharmaceutical companies, unbeknownst to the federal government, which was supporting his research. To ensure that Senator Grassley would not be compromised by a defamation lawsuit, we published the information during a Committee hearing. A reporter later wrote a front-page story on the information, creating support to pass legislation called the Sunshine Act.
In another case, the Committee wanted to make public information about a potentially dangerous drug. The information we had included documents from the drug company. Again, to protect against any possible legal retaliation, we published the information in a committee report, which is an official Committee action. The report was later covered by the New York Times and multiple other outlets, including Good Morning America. Just last year, the Washington Post published a front-page story on drug industry support for medical research that referenced multiple documents in that report. Again, those documents were under court seal.
However, Members can run into problems when disclosing information. The one example legal counsel discusses most often with staff concerns Senator William Proxmire (Dem-WI). In the mid-seventies, Senator Proxmire began giving out “Golden Fleece” awards—prizes he granted to federal research projects that he felt were goofy and a waste of taxpayer dollars. But one time, he screwed up.
In the late seventies, the Senator gave a Golden Fleece to Ronald Hutchinson, a scientists given a $500,000 federal grant to study why monkeys clench their jaws. Giving the award from the floor of the Senate wasn’t enough for Senator Proxmire. He later sent out a press release and gave interviews on the topic. Mr. Hutchinson sued the Senator and his staffer for libel, pointing out that the press release and public statements weren’t protected by speech or debate. The suit went all the way to the Supreme Court in Hutchinson v. Proxmire, with Hutchinson winning a $10,000 judgment against the Senator.
A couple years later, House Counsel Stanley Brand told the Washington Post that, when he advises Members on how to protect themselves against lawsuits for making controversial statements, he tells them, “Make it on the floor, don't repeat it and if someone asks you about it, don't talk about it.
In fact, no action was taken against Mr. Issa for releasing the wiretap information he was given by a whistleblower inside Justice. And when I contacted his office, a staffer told me that the matter never resulted in any action.