Thwarting congressional ethics

Court: Thwarting congressional ethics office not a crime

But the D.C. Circuit upholds four other convictions for David Bowser, ex-chief of staff to former Rep. Paul Broun.

By JOSH GERSTEIN

A law prohibiting obstruction of Congress does not apply to schemes targeting the House’s Office of Congressional Ethics, a federal appeals court declared Tuesday.

The D.C. Circuit Court of Appeals issued the ruling as it upheld a broader criminal case against David Bowser, who served as chief of staff to Rep. Paul Broun (R-Ga.)

At a 2018 trial, a jury convicted Bowser on several felony charges related to alleged efforts to use Broun’s taxpayer-funded “member’s representational allowance” to pay debate consultant Brett O’Donnell for work coaching Broun for debates.

However, after the trial U.S. District Court Judge Emmet Sullivan tossed out the most serious conviction, for obstruction of Congress. Over the objections of federal prosecutors, Sullivan held that the obstruction statute does not apply to congressional entities that don’t do their work under the control of congressional committees.

A three-judge D.C. Circuit panel unanimously concluded Sullivan’s reasoning was on target.

“The statute’s failure to include other congressional “offices” is especially strong evidence of meaning here because other statutes do,” Judge Thomas Griffith wrote in a 17-page opinion joined by Judges Karen LeCraft Henderson and Robert Wilkins.

Soon after a 1995 Supreme Court decision that found false statements to congressional committees were not covered by the criminal prohibition on lying to federal agencies, Congress passed an amendment that restored the application of the law to statements to congressional committees and also made clear that false-statement law applied to comments made to congressional offices.

However, as the appeals court noted, Congress made no similar tweak to the obstruction law.

“Congress knows how to refer to legislative offices when it chooses, and we must give effect to the statute’s tailored language,” Griffith wrote. “If Congress wishes to extend liability to those who obstruct the work of the Office, it may do so, and it has model language for such an amendment in the False Statements Act.”

The Office of Congressional Ethics was created by House resolution in 2008 as part of what Speaker Nancy Pelosi called a drive to clean up the “culture of corruption” in Washington. While the office can decide on its own to initiate probes, it can’t issues subpoenas, punish anyone, or even make the House Ethics Committee continue an investigation started by the office.

Bowser’s defense lawyer said the decision effectively reduces the likely punishment in such cases by taking the obstruction charge off the table.

“The court of appeals agreed that OCE is not within the scope of the obstruction statute,” the attorney, Leslie McAdoo Gordon, said. “That was clear from beginning and should have been all along. What it says about this case is it was seriously overindicted. This was a case of overreach.”

One ethics advocate said Tuesday that Congress should change the statute to make clear that obstructing OCE is a criminal offense.

“The court's decision is a significant blow to the ethics regime of the House of Representatives. Congressional leadership should move swiftly to close this gap in the law,” said Donald Sherman of the liberal watchdog group, Citizens for Responsibility and Ethics in Washington. “Extending the obstruction of Congress statute to include OCE investigations is essential to promoting and enforcing the highest ethical standards in the people's House."

However, the new appeals court ruling does not give those targeted or questioned by the office a free hand to lie, since false statements to OCE and some kinds of schemes to conceal facts or trick its officials remain covered by the false-statement law.

Indeed, that aspect of the ruling proved problematic for Bowser, as the court upheld four felony convictions in the case: one for concealing facts from OCE and three for false statements made to the office.

Bowser faces a four-month prison term on those charges, but Sullivan allowed him to remain free pending resolution of the appeal.

McAdoo Gordon said she plans to seek further review of the case either from the full bench of the D.C. Circuit or from the Supreme Court.

Griffith is an appointee of President George W. Bush. Henderson was appointed by President George H.W. Bush. Wilkins is an appointee of President Barack Obama. Sullivan was appointed by President Bill Clinton.