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Executive Memorandum #375

February 17, 1994

Time to Resolve the House Post Office Scandal

By

When the House of Representatives returns from its current break on February 22, Members will decide how to resolve the House Post Office scandal.

Despite the conviction of seven former House employees for Post Office-related crimes, and allegations of improper activity by sitting Members of Congress, the House has failed to investigate the matter properly or even to consider disciplinary action. Representative Ernest Istook (R-OK) has moved to force a vote next week ordering the House Standards of Official Conduct Committee (the Ethics Committee) to investigate the matter.

The Post Office scandal began with a May 1991 investigation by the U.S. Capitol Police into embezzlement by a single employee. The inquiry rapidly expanded to include allegations against other employees and a general audit of the Post Office. In early June 1991 top House officials moved to stop the investigation despite protests from then-Capitol Police Chief Frank Kerrigan. A month later, the Postal Inspection Service of the U.S. Postal Service began its own investigation at the request of then-U.S. Attorney Jay Stevens. In September 1991, the report of that investigation was turned over to House Postmaster Robert Rota, who says he gave the report to Heather Foley, wife of House Speaker Thomas Foley and his unpaid chief-of- staff. No action was taken until January 1992 media reports revealed that embezzlement and drug sales had taken place in the House Post Office. Following those reports, Democratic leaders referred the matter to the House Administration Committee, which established an investigative task force.

The task force's investigation was marked by partisan disputes, leading to the issuance of separate Republican and Democratic reports in July 1992. Democratic Task Force Leader Charles Rose of North Carolina declared the matter closed, but the Republican report raised numerous questions about illegal activity and mismanagement in the Post Office, noting that many issues could not be resolved by the task force because important records were unavailable and because Rota and other Post Office employees were not questioned under oath. Rota subsequently admitted that he misled the task force. The House agreed to put the Post Office under the control of a new, nonpartisan administrator, but took no action to clarify questions raised by the Republican task force report or to investigate and consider disciplinary action against specific employees or Members, a step which can be taken only by the Ethics Committee.

The issue again subsided until July 1993, when former Postmaster Rota pleaded guilty to three criminal charges, implicating House Ways and Means Committee Chairman Dan Rostenkowski and former Representative Joe Kolter in an illegal scheme to trade stamps or official House postal vouchers for cash. Soon thereafter Representative Istook began calling for an Ethics Committee investigation of these allegations. Largely on the argument that an Ethics Committee investigation might interfere with the workings of an ongoing grand jury inquiry, Istook agreed not to force a vote on his request, but did introduce a resolution (H.Res. 238) calling for such a probe. The resolution has 60 cosponsors.

Istook's request has now been pending for six months. In the meantime, authority for the first grand jury expired and a second panel had to start work anew, this time under the third U.S. Attorney to supervise the case -- a Clinton appointee. Istook argues that further delay based on potential grand jury action is unwarranted, if indeed it was ever justified. As the House was preparing to leave for a week-long recess on February 10, Istook gave notice that he would demand a vote on his request for an Ethics Committee investigation as soon as the House returns. Since this is a matter of privilege under House Rules, the Speaker must schedule the vote within two legislative days, making it necessary for the House to consider the issue within a day of its return on February 22.

The Constitution gives the House the authority, and by implication the responsibility, to discipline its members. In other cases House leaders have acted aggressively to preserve the prerogatives of the House to discipline Members, rejecting attempts by the executive branch or the judiciary. This separation of powers argument is a key justification, for instance, for congressional self- exemptions from legal requirements or enforcement procedures under many civil rights and worker protection laws. Representative Rose, who chaired the original Post Office investigation, claims that Ethics Committee action regarding alleged deficiencies in his own financial disclosure statements precludes subsequent court action on the same charges. The logic of these arguments would demand that the Justice Department stand aside for an internal House probe of its Post Office, rather than the other way around. At a minimum it is clear that there is no legal or constitutional requirement for the House to delay an inquiry into the conduct of its own Members in anticipation of potential action by the executive branch.

House inaction on the Post Office compares unfavorably with the Senate Ethics Committee's investigation of arguably lesser charges against Senator Bob Packwood (R-OR). Despite the Senate's aggressive stance, the Justice Department apparently is conducting a parallel investigation (an FBI agent recently examined Packwood's financial disclosure filings).

Istook has responded to charges that a House inquiry might interfere with the Justice Department probe by requiring, in his resolution, that the Ethics Committee cooperate with Justice and by allowing the committee to suspend its inquiry with respect to any Member who is already under investigation. While media attention has focused on allegations regarding Representative Rostenkowski, Istook's resolution orders a broader inquiry which might determine whether other Members violated House rules in connection with the Post Office. Such matters might well fall below the standard for criminal prosecution, but still could warrant internal House action.

Finally, Istook argues against the House simply awaiting executive branch action, pointing out that the Reno Justice Department's record in politically sensitive cases including Whitewater, the death of Vincent Foster, and the State Department personnel files (where Justice refused to prosecute, despite a recommendation from the State Department's Inspector General), inspires little confidence. It was in anticipation of precisely this sort of politically sensitive situation that the Constitution granted Congressmen partial immunity from arrest and gave each House power to discipline its own Members. Abdicating that responsibility in such a high profile case would again show that the House is incapable of managing its internal affairs, and strengthen arguments for remedies such as independent counsels and subjecting Members to executive branch regulators.

The House Post Office scandal has dragged on for three years. Despite the criminal convictions of several staff members, House leaders have continued to resist a thorough investigation of Representatives' conduct. While caution to avoid interference with criminal probes is appropriate, such external efforts are no excuse for the House failing to deal with its internal scandal. Istook's motion for an Ethics Committee investigation will ensure that House Members can no longer avoid this issue.

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