Thursday, January 26, 2012

Four words a politician never wants to hear

“You are under investigation” and/or “the report is out.”
On that note there’s an interesting subtext to the Republican presidential primary. It involves a report written by the House Ethics Committee in 1997. This is the famous report that sharply criticized then Speaker Newt Gingrich. He was fined $300,000 for a series of transgressions, marking the first time a Speaker had ever been reprimanded in such a manner.
What is happening now is that Gingrich’s rivals are calling for disclosure of all the information surrounding the production of that ethics report, including full interview transcripts and all documentary evidence. The implication is that there’s more there -- that maybe Gingrich’s conduct 15 years ago might have merited more than a critical report and a fine.
This brings me back to 1999 when the old Lobby Commission was investigating Phillip Morris Co. for possible lobbying violations in New York. An intrepid attorney general by the name of Eliot Spitzer was questioning our review and punishment of the tobacco company.
My response? I put every scrap of paper associated with the investigation including our internal notes and discussions on a CD-ROM and provided it to the Governor’s office and the legislature and released it publically. This took people by surprise. It’s not something that’s usually done. In fact, as a rule, prosecutors only release the information that supports their interpretation of the facts and the law. Or they release the testimony and evidence relied upon at trial. The public rarely gets to see the information that might be subject to a different interpretation or the internal strife that accompanies many an ethics investigation. I don’t know about you but I would love to have seen Teitelbaum’s notes on troopergate and his phone logs and anything else that would show how Darren Dopp got thrown under that bus and by whom.
But my attitude then and now was: “Here’s the whole case file. If you, Mr. AG, or anybody else can tell me what we missed or why we’re wrong, have at it.”
Interestingly, nobody ever raised a substantive issue with my handling of the case after the release of the case file. Spitzer’s threat to pillory me in the press never materialized.
Now there are some in the legal community who will maintain that such disclosure is not a good idea. They’ll insist that it could somehow undermine confidence in the investigatory process or that it might somehow be unfair to people who are investigated.
To both claims, I say: “BS.” What really undermines confidence in an investigatory process is a panel that operates in secrecy and fails to explain its actions and decisions. That was why COPI under Teitelbaum, Ginsberg, Feerick and Cherkasky was such a disaster. (Unfortunately, I see JCOPE under Ms. DiFiore, a sitting DA, heading down the same path. Some commissioners are otherwise inclined, but they may not be able to carry the day.)
As for disclosure of investigatory material and its effect on those who are investigated – that’s more interesting. I think there’d be instances where it would cut both ways. There’d be situations where people would review the evidence and say: “There’s nothing here at all. It’s much ado about nothing.” That would clearly be in the interest of an individual who was investigated.
And there’d be times when people would review the case file and say: “Wow, he (or she) really got away with it.” Could this make a person uncomfortable? You bet.
My answer to that would be to remind everyone of the deterrent role of the investigatory process. If disclosure of your conduct would cause embarrassment to you, maybe you should reconsider the conduct, eh?
Either way, I say: “Let the facts speak for themselves.” It’s the only real way that an ethics panel should work – by being completely open and transparent.
Once you pick and choose what is made public it is natural and understandable for the public to be cynical and believe there is more to the story. And that provides fodder for those that want to use ethics as a club.
Bad things happen to good people in dark places.

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