It’s been a few years since I’ve done that and I was never a particularly important member of the Ohio ethics bar, but I had my moments, some of them ridiculous, and learned some things about that weird world. Among the biggest takeaways: the procedure of an ethics investigation is of the utmost importance. Indeed, it is often more important to the outcome of an ethics investigation than are the actual facts of the underlying ethical allegations.
Investigating and discipling such matters does not take forensic experts or Holmsien deduction. If someone gets the goods on a politician for this stuff, it’s a pretty easy case to make. They’re not hardened or sophisticated criminals. They don’t know how to launder money and they wouldn’t have gotten where they are if they knew how to keep quiet. What a crooked politician has to hope for, then, is that no one ever gets the goods. That investigators have few tools with which to investigate. Actually, the best case scenario is that the process of investigation never even begins.
I saw this time and again in my legal practice.
The biggest fear my ethics clients had was not being able to control the process of an ethics investigation, and the first question they would ask — always — focused on how they could bring the ethics panel or investigator to heel. Did the investigator answer to the governor, who owes me favors? Did he have to be appointed by a bipartisan body, two members of which rely on me for fundraising? Does the investigator depend on the legislature — and the committee on which my political protege sits — for funding? These basic, fundamental matters were always their first concern.
Why? Because it’s far preferable to stop an investigation before it starts rather than fight it as it unfolds. As such, before talking about a single fact regarding the substance of the case, my clients and I would try to figure out what strings could be pulled in order to kill it in the cradle. There are far, far more strings — almost all of them legal — than you might imagine.
The second question my clients always asked dealt with publicity. Would the investigation be confidential? Would the very existence of it be known and, if so, when would it be known? How about the substance? Was the docket public? Were the hearings open or closed? Were they subject to public record requests and, if so, at what point?
Why? Because my clients were politicians and politicians are masters of spin. If they knew the manner and timing in which their ethics case would come to light, they could prepare their talking points and spin accordingly. The less the investigation was out in the open, the more easily they could characterize it as a baseless, politically-motivated witch hunt. The more it was out in the open, the more cautious they’d have to be.
The final question they’d ask — again, before we discussed any of the substance of the case — was who was making the accusation which launched the investigation in the first place. This was a concern which combined the previous two, aimed at determining whether their accuser could be compromised or, alternatively, smeared in the press.
It was only after these matters were addressed that we’d get to the substance. Which, as I said, was not something to which they gave much thought. The ethics laws themselves are often mere abstractions to the powerful and self-confident. All that matters is how easy it is to get away with breaking them and out from under the heat when they’re busted.
Which underscores why the process and procedures are so important. Corrupt public officials don’t have much respect for ethical standards, but they legitimately fear effective ethical oversight, are legitimately deterred by its presence and are enabled and encouraged by its absence.
All of which brings us to last night’s announcement of congressional Republicans’ plans for the Office of Congressional Ethics (“OCE”), which for the past eight years has exercised independent oversight with respect to members of Congress. Among the alterations, which will most likely pass today:
- The OCE will no longer be independent. Instead, it will be under the House’s Committee on Ethics, which is run by the members of Congress, each of whom are answerable in hard and soft ways to the very members which would be investigated which, in turn, creates strings which can be pulled;
- The OCE will be required to stop any investigation if the House Committee on Ethics committee tells it to do so, which is a pretty fat string;
- The OCE will no longer be able to make public statements, issue public reports or even employ a spokesperson, allowing those who come under investigation to spin, characterize and discredit it however they choose and without any pushback. That is, if the investigation comes to light at all; and
- The OCE will no longer be able to accept anonymous tips from whistleblowers, which will discourage congressional staffers and others in the best position to discover unethical behavior from reporting it due to fear of retribution and which will allow the accused to smear, attack and punish those who do report unethical behavior;
There may or may not be other reasons for making these changes — and supporters of the changes will no doubt claim, in Orwellian fashion, that this new weakness in ethical oversight is strength — but there is no question that they grant the most heartfelt wishes of every would-be ethics scofflaw.
My old clients would’ve loved to be able to do this to the various bodies which investigated them. It would’ve been really bad for my billings, though. People in no real danger of being punished rarely have to pay lawyers to defend them.