CQ TODAY PRINT EDITION
– CONGRESSIONAL AFFAIRS
April 21, 2008 – 8:14 p.m.
Speaker Agrees With Senate on Justice Department Probe of Earmark
By Edward Epstein, CQ Staff
In the past, Speaker Nancy Pelosi has jealously guarded the House’s institutional prerogatives. But she has decided to go along with a Senate-penned measure directing the Justice Department to investigate a House earmark.
Several House aides said Monday that Pelosi will ask the House to concur with the Senate and mandate a probe of how language in a 2005 bill that earmarked money for a Florida highway project was changed between final congressional passage and President Bush’s signature.
“The Speaker believes this a matter for the House ethics committee to look into, but she has no intention of standing in the way of the transportation bill as it moves forward to the president’s desk,” said Nadeam Elshami, a spokesman for Pelosi.
Any probe would involve scrutiny of Rep. Don Young , R-Alaska, who was the chairman in charge of the 2005 highway bill (PL 109-59), or of Young’s staff. Young’s spokeswoman said last week that proper protocol was followed when the change was made.
Separation-of-Power Issues
For Pelosi, D-Calif., the sudden flare-up of interest in 2005’s earmark for Coconut Road near Fort Myers, Fla., did not pose any institutional conflict, aides said.
Senate Majority Leader Harry Reid , D‑Nev., kept the Speaker apprised of the Senate language as it was being vetted before floor consideration of this year’s highway bill (
Stan Brand, former House general counsel who is now a Washington ethics lawyer, said he was surprised that Pelosi so readily agreed to accept the Senate proposal.
Pelosi had been adamant in standing up for the House’s rights in fighting the FBI search of the offices of Rep. William J. Jefferson , D-La., in connection with a corruption investigation. She also pushed through subpoenas for White House officials Harriet Miers and Joshua B. Bolten , Brand noted.
“I’m surprised that the Speaker, who has taken firm institutional positions in the past, would not be sensitive to separation-of-power issues,” he said.
Adding the Florida earmark to the highway bill after final passage is part of a sequence of events “almost entirely within the legislative branch” and therefore is protected by legislative privilege, Brand said.
But Jonathan Turley, law professor at George Washington University, said that the Coconut Road matter is different because the Senate proposed to investigate something that happened in the House.
“The Senate can claim to be a victim in this case,” Turley said. “The circumstances of the legislative process undid a legislative authorization by the Senate.”
Speaker Agrees With Senate on Justice Department Probe of Earmark
Investigate Young’s Conduct
Turley said the proper course now would be for the Justice Department to investigate Young’s conduct as a possible criminal matter while the House panel looks into possible violations of House rules.
House Minority Whip Roy Blunt , R‑Mo., said he thought Boxer’s proposal was probably unconstitutional because the legislative branch cannot order the Justice Department, part of the executive branch, to undertake a criminal investigation. He suggested that the Government Accountability Office, which is under Congress’ control, conduct an investigation.
Reid said last week that seeking the criminal probe was the best option constitutionally.
“Our Constitution does not provide the Senate with authority to direct a House committee to initiate an action,” he said. “Senators cannot — and should not — investigate a House member any more than House members could or should investigate a senator.”
The Senate-passed language, Reid said, “simply calls on the Justice Department to review the allegations of impropriety and find out if federal criminal laws have been broken. . . . It does not seek to intrude upon the constitutional duty of each house of Congress to discipline its own members. Nor does it alter the duty of the executive branch to faithfully execute the laws.”
The Coconut Road Earmark
Young was chairman of the Transportation and Infrastructure Committee in 2005.
When the full House and Senate considered the highway bill, it contained a $10 million earmark for expanding Interstate 75 near Fort Myers. By the time the bill reached the White House, the earmark had been changed to require that the money be used to build an interchange at Coconut Road, a project linked to a developer who had raised $40,000 in campaign funds for Young.
Turley, who has criticized the congressional ethics process, said the Coconut Road earmark will undoubtedly be investigated by the Committee on Standards of Official Conduct.
“It’s hard to imagine that even the House ethics committee could find a way around this one,” he said.
Brand said a House probe is proper, but he warned about any Justice Department involvement.
“There’s no crime in the federal code for monkeying around with legislation. That’s a legislative offense, if you will,” Brand said, adding that a Justice Department investigation could actually hinder the separate ethics investigation.
Speaker Agrees With Senate on Justice Department Probe of Earmark
“Portions of the matter Justice will not be able to investigate, and if Justice does get involved, it will ask the ethics committee to stay its hand” so it can question witnesses, Brand said. “It gets messy.”
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