Senate Hearing Tackles Criminal Referrals From Federal Investigations

By TIM RYAN

WASHINGTON (CN) – Senators Tuesday eyed changes to federal rules that would better protect congressional staffers from criminal referrals launched by the federal agencies they investigate.

At a hearing before the Senate Subcommittee on Crime and Terrorism Tuesday afternoon, Sens. Lindsey Graham, R-S.C., and Sheldon Whitehouse, D-R.I., expressed concern that executive branch officials have too much power to take action against congressional committee staff who are investigating their agencies.

After listening to suggestions from a panel of lawyers about how to change federal regulations to better protect these staffers, Graham said next year could be the time to “make some parity between the congressional staffer and the executive branch.”

Some of the changes could come by altering memorandums of understanding between federal agencies and the legislature, Graham said, while acknowledging that other changes will have to come through legislation.

Graham embraced the idea of installing an independent counsel to look into executive branch complaints against investigators.

“The real big issue is that when we’re doing our job investigating the executive branch, they think we’ve gone too far and they want to make some kind of criminal referral,” Graham said in an interview.  “What I’m thinking about is if an executive branch agency wants to make a criminal referral and the body doing the investigating – the Congress – says, ‘no, these people are acting within the scope of their employment, we told them to do this,’ then you have to basically have some kind of independent counsel.”

The team of legal minds Graham and Whitehouse assembled for the hearing gave a range of options for the senators to consider, from eliminating a rule that prevents congressional staff from accepting pro bono representation to providing the indemnification of costs and fees arising from their legal representation.

Congressional staff members are especially vulnerable to aggressive charges from the agencies they investigate because they typically make low or moderate incomes and rely on the executive branch for the security clearances necessary to advance their careers, Bill Pittard, a partner at Kaiser Dillon who once worked as acting general counsel for the U.S. House of Representatives, told the committee.

Removing these staff members, who typically conduct investigations, can leave Congress unable to perform its constitutionally intended role as a check on executive power through vigorous oversight, Whitehouse and Graham agreed.

“The current system seems to mean you can knock them out of the game pretty quick,” Graham said of congressional staff investigating federal agencies.

Scott Horton, a Columbia Law School adjunct professor who testified at the hearing, also suggested changing a 1995 memorandum of understanding between the intelligence community and the Justice Department regarding criminal referrals to clarify that neither members of Congress nor their staff are “proper subjects of a criminal reference.”

If that agreement cannot be reached, Horton suggested referrals for congressional staff members should at least be sent straight to the attorney general.

Whitehouse insisted the concerns expressed at the hearing were not hypothetical. He had firsthand experience with them when serving on the Senate Intelligence Committee as it compiled its report on the CIA’s torture program.

During that investigation, which began in 2009, committee staff accessed an internal CIA assessment of the torture program called the “Panetta Review.” The CIA had apparently not intended for the review to become available, and when it learned the committee had seen the document, it directed its employees and contractors to access the committee’s computer network.

In 2014, the CIA submitted a criminal referral to the Justice Department through its acting attorney that claimed committee staff had broken federal hacking laws by accessing the Panetta Review.

Sen. Dianne Feinstein, D-Calif., at the time called the CIA referral a “potential effort to intimidate [committee] staff.”

“One could imagine a scenario in which an executive official, who is the subject of a tough committee investigation, launches a criminal referral against committee staff, and a friendly attorney general then sits on it, or slow-walks it, to protect his colleague and the administration from embarrassing disclosures,” Whitehouse said during the hearing. “That appears to be a scenario against which we have no adequate present safeguards.”