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03.11.10

Massa Case Puts Pelosi on Trial

Is Rep. Eric Massa's case going to do to the Democrats what the Mark Foley scandal did to the GOP? Benjamin Sarlin talks to Washington super lawyers about whether the House leadership messed up once again.

Eric Massa is gone from Congress, but his alleged misconduct could still cause headaches for Democratic leaders for some time.

On Thursday, the House passed a GOP-backed resolution, by a 402-to-1 vote, calling on the ethics committee to investigate the Massa case further. News reports earlier indicated that the ethics committee would drop its investigation into Massa’s misconduct once he resigned as they no longer had jurisdiction over his case. The House’s resolution, however, moved the spotlight from the disgraced Congressman to House leadership and whether Democrats handled reports of alleged misconduct properly.

“It would set a bad precedent” if innuendo were reported and investigated—“That would be called the former Soviet Union—not the United States of America,” Abbe Lowell, a partner at McDermott Will & Emery LLP said.

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This investigation into when and how lawmakers became aware of issues with a House member drew immediate comparisons from some observers to the Mark Foley case, in which Nancy Pelosi called on the ethics committee to look at whether then-Speaker Dennis Hastert along with other representatives and staffers covered up the Republican congressman’s behavior.

Stefan Passantino, a partner at McKenna Long & Aldridge LLP who represented Hastert during the Foley investigation, said calls for an inquiry into Massa’s misconduct were “directly analogous” to that case.

“Whether it’s fair or not fair to undertake an investigation, it clearly was her perspective before she was speaker that this warranted an investigation under oath,” Passantino told The Daily Beast. “There was discussion that... the ethics committee was not going to have jurisdiction anymore because he's gone. Well, it’s not about him, it’s about leadership.”

The vote came after a series of news reports, cited in the resolution, in which Speaker Nancy Pelosi’s aides were said to have heard rumors about inappropriate conduct by Massa in October, and that Majority Leader Steny Hoyer heard of allegations against Massa in February that he directed Massa’s staff to report to the ethics committee.

The committee still has to decide whether to follow the House’s lead and open an investigation. And even if the committee does decide to proceed, it’s not yet clear how much of a threat it would pose to Democratic leaders.

"Do they have reason to believe there was conduct presenting a physical danger to people, or was it rumor or innuendo?" said Rob Walker, a former chief counsel and staff director for the House ethics committee. "There's a spectrum of conduct and it seems pretty clear the House has voted to take a look where it falls on that spectrum."

If Pelosi and Hoyer’s current accounts are accurate, they’re probably fine. Pelosi’s aides, according to The Washington Post, were told by Massa’s chief of staff in October that the congressman was living with several young male aides, using profanity, and had had lunch alone with a gay aide to Rep. Barney Frank (D-MA). Evidence of a potential political problem, perhaps, but according to legal experts, secondhand rumors of marital infidelity with staffers do not require referral to investigators. Only if Pelosi or her aides were aware of specific misconduct and deliberately sought to cover it up would they be in trouble.

While not commenting on Pelosi’s particular case, Abbe Lowell, a partner at McDermott Will & Emery LLP, said that "it would set a bad precedent” if innuendo were reported and investigated. "That would be called the former Soviet Union—not the United States of America."

Pelosi offered a defense along those lines last week as well. “This is rumor city,” she told reporters. “Every single day, there are rumors. I have a job to do and not to be the receiver of rumors.”

In Hoyer’s case, a spokesman said that he received in February not secondhand reports, but a direct allegation of misconduct from a Massa staffer, who he immediately referred to the ethics committee. Unless new evidence shows that Hoyer sat on specific information beforehand, his response would seem to have been the correct one for a party leader faced with an accusation against one of his members.

There are also crucial differences between the Massa case, as it has been reported so far, and the Foley scandal that make it less likely to ensnare other lawmakers or staff. In the case of Foley, his actions involved underage aides who were part of a House institution—the page program—and implicated Congress itself in the scandal. As a result, it required a broader investigation to determine how the program had been compromised and whether Congress could guarantee the safety of children taking part in it. Given that congressmen had already been involved in sex scandals with pages before—in 1983, when Reps. Dan Crane and Gerry Studds admitted to sleeping with 17-year-old pages—the issue was even more relevant.  Each of the House’s final recommendations in its report on the Foley case explicitly called for improvements to the page program to prevent further abuse, but they did not call for party leaders to report general misconduct outside of it.

Of course, things could change if an investigation finds that the Democrats knew more than they let on, but it would likely take something significantly more serious to get individuals into real trouble. Even in the Foley case, in which some aides testified they were aware of concerns about the Florida representative and pages going back to the mid-'90s, the final report found no violations by any one individual and instead only admonished an overall “pattern of conduct” in which claims were not aggressively investigated.

Benjamin Sarlin is Washington correspondent for The Daily Beast. He previously covered New York City politics for The New York Sun and has worked for talkingpointsmemo.com.