The Foley Investigation

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I've been traveling sans laptop but have finally gotten a chance to set down some of my thoughts on the Foley scandal.

The first thing to say is that there is no evidence that Speaker Dennis Hastert or anyone else in the Republican leadership knew anything about the sexually explicit instant messages until they were posted on on September 29. Within hours, Mark Foley resigned from the House of Representatives. Thus there was no coverup of the IMs. And there certainly have been no admissions, as Democrat Patty Wetterling running in the Sixth District of Minnesota charged in an ad, that the Republican leaders have admitted covering up improper sexually explicit behavior.

That said, there remain questions about whether Republican leaders responded properly to the charges made earlier that Foley had been sending "overly friendly" but not sexually explicit E-mails to former pages. None of the IMs that we know of were sent to current pages, for whom Congress has custodial responsibility, and some of them apparently were sent to former pages when they were 18 or older. Hastert has said that John Shimkus, the lead member of the bipartisan page board, talked to Foley and told him to stop all questionable contact with the pages. So far, so good. But there is the question of whether the leaders or other members had other knowledge of possibly improper conduct by Foley and what, if anything, they did about it.

My own opinion, previously expressed in this blog and on Fox News, is that Shimkus should have brought in the Democrat on the page board, Dale Kildee, and I think that he should have brought in the third member, Republican Shelley Moore Capito, as well. I doubt they would have recommended doing anything different from what Shimkus did. But maybe they would have. Anyway, Minority Leader Nancy Pelosi is right when she says that this was an institutional matter, not a partisan matter, and that Kildee should have been contacted.

I was heartened by the press conference held by the ethics committee investigative subcommittee yesterday. The four members announced that they have authorized some four dozen subpoenas and want their investigation to take "weeks, not months," as ranking Democrat Howard Berman said. All four members proclaimed in the strongest terms that they want to proceed on a nonpartisan basis and without regard to political fallout. I believe them. I am certainly convinced that Berman, whom I have known for many years, is approaching the investigation in this spirit; I have written earlier in praise of Pelosi for appointing him as the ranking Democrat on the full ethics committee. Chairman Doc Hastings, Republican Judy Biggert, and Democrat Stephanie Tubbs Jones all seem to be taking the same view.

"Weeks, not months." All four of these members represent safe districts, and none, so far as I know, has commitments to run around the country campaigning for other members. So they should be able to put in five-day weeks in Washington on this investigation.

I'm not sure the investigation can resolve all questions of fact. For example, NRCC Chairman Tom Reynolds remembers telling Hastert about Foley's overly friendly but not sexually explicit E-mails. Hastert doesn't remember the conversation but says it could have happened. That's credible: During sessions of Congress, members are surely bringing dozens of problems to Hastert's attention every day: Foley's E-mails; the Energy and Commerce subcommittee that's stalling on legislation; whether a bill should get on the suspension calendar; can he keynote a fundraiser in late August?–not many people can remember all the details months or years later.

The ethics committee does not have jurisdiction over Foley, because he is no longer a member of Congress, and he's unlikely to testify before the subcommittee, at least so long as the FBI has the matter under investigation. But it does have jurisdiction over current members and staff members. It can recommend punishments–ranging in severity from reprimand to censure to expulsion. But it can also issue judgments. I suspect it will find the failure to bring Kildee and Capito in on the matter to be bad judgment or possibly worse. But I find it hard to believe that it will find that any member covered up the sexually explicit IMs, unless it comes across evidence that has not yet come anywhere close to light.

What about the tantalizing question of how the IMs came to be made public? Apparently, a George Soros-funded, Democratic-staffed group called CREW had them earlier this year.

CREW members say they turned copies over to the FBI in July. But they didn't turn them over to responsible authorities in the House (the page board, for example, or any one member of it), as they could have. From what I have read, Foley IMs, or at least the ones we have seen, probably wouldn't justify a prosecution under federal criminal law; that requires some act rather than just words.

But the House holds its members to higher standards than the criminal law. Democrats or their sympathizers can withhold information politically damaging to Republicans until a time when disclosure seems likely to do the most damage. It's an adversary system. But is it ethical to withhold information when its earlier disclosure might serve to protect young people from harassment? I should think not. That may not be a question for the ethics committee, if the withholders were not House members or staffers, but it should be a question for the press.