Wednesday, August 1, 2007
The House overwhelmingly passed a Congressional ethics "reform" law, now called The Honest Leadership and Open Government Act of 2007, and the Senate is likely to send it to the President. One provision of the law, Sec. 401, would strip a member of Congress of his or her pension if convicted of certain specified offenses related to conduct in office. Among the statutes that can trigger the pension loss are bribery and unlawful gratuities (Sec. 201), foreign lobbying (Sec. 209), obstruction of justice, wire fraud/honest services, perjury, money laundering, and RICO, along with conspiracy to violate any of these laws. The list is more interesting for what it leaves out, however. A conviction under the wire fraud statute, Sec. 1343, triggers the pension loss, but not one under the companion mail fraud provision, Sec. 1341. These two statutes are interpreted identically regarding fraud, and are often charged together based on how the fraud was perpetrated, i.e. whether through wire communications or if the mail and interstate carriers were used. Similarly, the bill identifies Sec. 1957 of the money laundering statute, which has a $10,000 minimum for the financial transactions, but does not include Sec. 1956, which covers concealment through monetary transactions. The obstruction provision listed, Sec. 1512, is broad, but left our are Sec. 1505, which covers obstruction of Congressional committee and federal agency investigations, and Sec, 1519, an even broader provision adopted as part of the Sarbanes-Oxley Act. One perjury statute, Sec. 1621, is on the list but not the other, Sec. 1623. And not even included is Sec. 1001, the false statements statute, which covers a broader array of conduct than the perjury provisions and is frequently used in federal prosecutions involving government filings and false statements to agents.
Why the selective inclusion of some federal criminal provisions but not others covering similar conduct? Maybe I'm getting too cynical in my old age, but one possible explanation is to give future Representatives and Senators a way to protect their pensions and still plead guilty if caught in an investigation. For example, rather than pleading to a wire fraud/honest services charges, the official could offer to plead to a mail fraud charge covering the same conduct -- except that a mailing or delivery by an interstate carrier would be identified as part of the execution of the scheme. Same basic offense, and the same sentence, but no loss of pension. Is this a potential bargaining chip for prosecutors: "Take a Sec. 1001 charge, or we'll charge you with perjury so you'll lose your pension?" I'm sure there's an innocent explanation for the selective inclusion of some crimes. (ph)