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November 1, 2014

Why Did the Ethics Investigation of Radel End? | A Question of Ethics

Q. I have a follow-up question to your recent column about the House Ethics Committee’s investigation of Trey Radel. Radel has since resigned from the House, and the Ethics Committee announced that, as a result, it was ending its investigation. Can you help me understand this? I would think that the mere fact that Radel resigned doesn’t mean that he didn’t do anything wrong. So, why would the Ethics Committee stop investigating him?

A. The House Ethics Committee ended its investigation of Trey Radel for one reason: It no longer had jurisdiction over him. To understand why, let’s look at what led up to the decision to stop the investigation.

In December of last year, the Ethics Committee announced that it had formed an investigative subcommittee to review whether the Florida Republican had “violated the Code of Official Conduct or any law, rule, regulation, or other applicable standard of conduct in the performance of his duties or the discharge of his responsibilities, with respect to conduct forming the basis for criminal charges of possession of cocaine in the District of Columbia, to which Representative Radel pled guilty on November 20, 2013.”

In conducting its investigation, an investigative subcommittee may subpoena documents and take sworn testimony from witnesses who may have relevant information. However, committee rules require that all investigative subcommittee proceedings take place in “executive session,” which means they must remain confidential. Therefore, except where a report is issued after an investigation, little is known about the details of ethics investigations such as the one of Radel.

On Jan. 27, Radel resigned from the House. “It is my belief that professionally I cannot fully and effectively serve as a United States Representative,” he wrote in a letter read on the House floor.

Although Radel’s resignation led many to presume that the ethics investigation would end as well, others argued that it should continue, including the advocacy group Citizens for Responsibility and Ethics in Washington. “The congressman’s resignation should in no way derail the ethics investigation stemming from this incident,” CREW said in a public statement. CREW said that many questions remained unanswered, like who introduced Radel to his drug dealer and whether he shared drugs with other members or staffers.

Nevertheless, two days later, the Ethics Committee announced that the subcommittee had indeed ended the investigation. “The Investigative Subcommittee began its investigation but was unable to complete its work before Representative Radel resigned from the House on January 27, 2014,” the investigative subcommittee said. “As a consequence, the Investigative Subcommittee no longer has jurisdiction over him.”

This conclusion is not surprising. House Rules empower the Ethics Committee to investigate potential violations of members, delegates, resident commissioners, officers and employees of the House. Conversely, the committee has often recognized that members and staffers who “are no longer serving in or employed by the House … are outside the Committee’s jurisdiction pursuant to House Rule XI, clause 3(a)(2).” Thus, when a member that is the subject of an investigation resigns, the general practice of the Ethics Committee has been to discontinue that investigation.

The few exceptions to this practice have occurred where there was reason to believe that the conduct of other members and staffers was at issue. CREW has argued that’s the case here by suggesting that Radel’s dealings with drugs might have involved other members and staffers. However, while the confidentiality requirements make it impossible to know what the subcommittee discovered during its investigation, there has been no public information reported linking other members or staffers to Radel’s drug use.

In 2006, after Mark Foley resigned amid allegations of improper conduct with House pages, the Ethics Committee formed an investigative subcommittee to “conduct a full and complete inquiry and investigation into any conduct of House Members, officers, and staff related to information concerning improper conduct involving Members and current and former House pages.” There, however, the committee already had information raising questions about how specific members and staffers responded after learning of Foley’s misconduct.

Here, by contrast, it appears the committee had no such information, and concluded there was nothing left that it could investigate. In short, since Radel is no longer a member of the House, the Ethics Committee lacks jurisdiction over him.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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    Drugs?

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