How the Senate's Craig probe will work

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - Sen. Larry Craig, R-Idaho, is under scrutiny from the Senate Ethics Committee due to his guilty plea after he was arrested on June 11 in a Minneapolis airport men's room.

Sgt. Dave Karsnia, the undercover officer who arrested Craig, said the senator had signaled by hand and foot gestures that he wanted to have sex with him. The restroom was known as a homosexual haunt.

Here's a simple Q & A guide to the committee's inquiry.

What is the job of the Senate Ethics Committee?
To investigate allegations of law breaking, violations of the Senate Code of Official Conduct, and violations of the Senate’s rules by senators or staff members.

It also investigates improper conduct which may reflect badly upon the Senate.

MSNBC video Craig stays in Senate Oct. 5: Stan Brand, Sen. Craig's attorney, explains his decision to keep his Senate seat. Hardball

Once it has investigated, it can recommend disciplinary action.

What is the basis in the Constitution for the Ethics Committee’s investigation of Craig?
Article I of the Constitution says each house of Congress may “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Does a senator need to have violated a specific law or Senate rule in order for him or her to be scrutinized by the Ethics Committee?
No, the Senate has voted to discipline members for unethical or improper actions, even if they didn’t violate any particular law or Senate rule.

The Senate Ethics Manual says the committee can investigate a senator's conduct when it is “so notorious or reprehensible that it could discredit the institution as a whole, not just the individual.”

How many senators serve on the Ethics Committee?

Six, three from each party. The current chairwoman of the panel is Sen. Barbara Boxer, D- Calif.

Karen Bleier / AFP/Getty Images As chairwoman of the Ethics Committee, Sen. Barbara Boxer, D-Calif., is at the helm of the probe of her colleague Sen. Larry Craig.

Is there a conflict of interest here, since three members belong to Craig's political party and the other three are from the opposing party? How can this be a neutral fact-finding body?
The Constitution makes the Senate mostly a self-policing institution, so there's no alternative to senators sitting in judgement of one of their own colleagues.

The Senate voted last year to reject the idea of an independent director of public integrity who would have had a role in policing behavior.

In previous Ethics Committee actions, such as the 1982 vote to recommend expulsion of Sen. Harrison Williams, D-N.J., who had been convicted of conspiracy and bribery in the “Abscam” FBI sting operation, the Senate was controlled by the Republicans and Williams was a Democrat. Williams resigned.

In other cases, a Senate controlled by one party has voted to censure a senator of that same party.

In Craig's case, the ranking Republican on the Ethics Committee is Sen. John Cornyn, R- Texas, who is also a member of the his party's leadership as Vice Chairman of the Senate Republican Conference.

Cornyn has not commented on Craig's case.

It is in the Republicans' 2008 electoral interest to see Craig promptly gone from the Senate.

Is there a deadline for the committee to finish its work?
Craig's term expires on Jan. 3, 2009, so the case will be moot as of that date.

In what phase is the Ethics Committee now in the Craig case?
It is conducting a preliminary inquiry, which is always conducted behind closed doors. In this phase it may be gathering evidence, taking testimony, etc.

After the committee launches a preliminary inquiry, what next?
If the committee finds “substantial credible evidence” of misconduct, it may, by a vote of four of its members, start an ‘‘adjudicatory review’’ of the case.

It must notify the senator in question of its decision to conduct the review, stating the nature of the possible violation and a description of the evidence.

What rights does the senator accused of wrongdoing have during this adjudicatory review?
The committee must give him the opportunity for a hearing, which may be public or private at the Committee’s discretion, before the committee recommends disciplinary action to the Senate. He has the right to cross-examine witnesses, and may call witnesses in his own behalf.

Can the Ethics Committee subpoena evidence?
Yes.

In 1994, when Sen. Bob Packwood, R-Ore., was under investigation for making unwanted sexual advances on several women, he urged federal district Judge Thomas Penfield Jackson to limit the scope of the subpoena the committee had issued to him.

Richard Ellis / AFP/Getty Images 1994 file photo of then Sen. Bob Packwood, R-Ore., Chairman of the Senate Finance Committee, listening during a committee meeting on Capitol Hill.

But Jackson ruled that Packwood had no constitutional right to refuse to turn over evidence which the panel had subpoenaed.

A federal judge, Jackson wrote, “has no authority to restrict the scope of the Ethics Committee’s investigation.” Jackson said the Ethics Committee is the equivalent of a grand jury and acts “in furtherance of an express constitutional grant of authority to Congress to keep its own house in order.”

So far, what has been the defense mounted by Craig's attorney, Stan Brand?
Brand told Hardball's Chris Matthews last week that Senate staffers had threatened Craig with embarrassing Ethics Committee hearings.

But, said Brand, "the facts are known in this case. We have the (audio) tape (of Karsnia's booking of Craig). What the tape shows is innocent conduct. What the tape shows is a man being threatened and cajoled into pleading by an over-reaching police officer."

Brand added that a misdemeanor guilty plea is the kind of conduct "that historically has never been subject to discipline" by the Senate.

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