February 2008 Ethics Dunces

House Committee on Oversight and Government Reform

Recognizing that members of Congress have about the same sensitivity to ethical principles as Luka Brazzi hardly requires an ethicist. But the House Committee on Oversight and Government Reform really disgraced itself by permitting Roger Clemens, who was preparing to appear before the committee and testify that he had not used performance-enhancing substances as alleged by his former trainer and the Mitchell Report, to have private visits in the offices of 19 Committee members prior to his appearance.

Some, like Brooklyn's clueless Edolphus Towns (D-N.Y), took souvenir photos of Clemens with his staff. Apparently the Representatives couldn't distinguish Clemens' situation from that of other interests that lobby them daily, but there's a big difference. The Committee was going to be sitting in judgement on the credibility of two men, Clemens and Brian McNamee, Clemens' accuser, who have sworn to tell the truth and are telling diametrically contradictory stories. One of them is committing perjury, and the Committee would play a large part in determining who. The result could send someone to jail. It could also damage baseball's efforts to ferret out the cheaters on the field.

Thus the Committee was serving a quasi-judicial function, and members have the same ethical obligations as judges: to be fair to both sides, to avoid outside influences, and to avoid the appearance of bias and impropriety. The ethics standards for judges prohibit them from meeting with one side of a pending dispute without the other side's presence, not to mention asking that side for an autographed photograph and a signed baseball. The ethics standards for lawyers forbid attorneys from orchestrating such visits too. Clemens' slick Texas lawyer, Randy Hardin, has proven to be an expert in violating the spirit of the ethics rules while barely meeting their literal requirements, and this is a classic example. Technically, the hearing isn't covered by attorney ethics rules. But the fact that he can escape professional discipline for this stunt doesn't excuse the members of the Committee for letting him do it.

Then there's the little matter of a federal statute that forbids members and their staffs from accepting anything more valuable than fifty dollars from individuals appearing before their committee. Even after his slippery testimony, Clemens' photos and autographs will fetch more than that on Ebay

Many Congressional questioners, especially Republicans, went easy on Clemens in the hearing. Many of us can legitimately wonder if he bought their favor with celebrity handshakes and schmooze. What should have been a fair and tough examination of two adversaries with their credibility and careers on the line was stained with favoritism.




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