stand your position as well-but the Department is ducking, and it is a mistake. I don't think it lives up to the traditions of the Department. Senator COHEN. Mr. Keeney, thank you very much for coming up and offering us the nonviews of the Department of Justice. [Laughter.] Mr. KEENEY. Thank you, Senator. Senator COHEN. Our next witness is Mr. David Martin, Director of the Office of Government Ethics. As head of the OGE, Mr. Martin is the chief ethics official in the executive branch, and we look forward to hearing from this gentleman, who has had many occasions to come before the subcommittee in the past. TESTIMONY OF DAVID H. MARTIN, DIRECTOR, OFFICE OF GOVERNMENT ETHICS, ACCOMPANIED BY F. GARY DAVIS, ATTORNEY ADVISER, OFFICE OF GOVERNMENT ETHICS Mr. MARTIN. Thank you, Senator Cohen. With me is Gary Davis, a senior attorney on my staff and a career employee on whom I rely implicitly in these sort of things, and if you have any questions to ask him, feel free to do that as well as me. I will summarize my formal statement1 very briefly just by saying that since the passage of the Ethics in Government Act we have used a wide variety of options, including civil and criminal sanctions to enforce the reporting parts of the act, and we have used them in a complementary fashion. Primarily, we rely on civil sanctions unless there is an egregious or some overriding consideration in which case we might recommend-would recommend criminal action. Principally, the failure to file involves termination reports. That is, when a person leaves, he has 30 days to file a report. Generally, in that kind of situation, just a letter from us or from the agency that the employee departed is sufficient to get a response. In the case of a willful misrepresentation-well, in the case of a misrepresentation, if we find it and it is just negligence or ignorance on the part of the individual, we will ask them to amend it, and in most cases that is the end of it. It is amended and promptly. In the case of, as I said, a willful misrepresentation, then we have presently both a civil and a criminal sanction, which we can use to support enforcement of the reporting requirement. The administration's position on this bill is that it defers to the judgment of Congress. Senator COHEN. What? Let me read something to you, Mr. Martin. I wrote to you about your views on the bill that we are considering today, and I got a letter from you dated April 14 in which you wrote: "While we do not believe that criminal penalties are appropriate in every case of intentional false filing, we think that they should be available." Does that remain your view today? 1See Mr. Martin's prepared statement on p. 30. Mr. MARTIN. That is my personal view, Senator. Senator COHEN. Well, you do speak on behalf of the Office of Government Ethics, don't you? Mr. MARTIN. I do. Senator COHEN. Yes. Mr. MARTIN. I am also a part of the administration. Senator CоHEN. So the administration has determined that it does not wish to pass any judgment on whether we should maintain the law as it exists despite the fact that you as the chief ethics official believe that it is appropriate to have criminal prosecution discretion available? Mr. MARTIN. That is how I understand it, yes. Senator COHEN. Your letter went on to say: The provisions of 18 USC section 1001 and 5 USC 204 complement each other and, more importantly, they both complement the entire range of criminal conflict of interest provisions. Is that your personal view, or is that- Mr. MARTIN. That is still my view. Senator COHEN. That doesn't reflect the view of the Office of Government Ethics? Mr. MARTIN. Well, I would-Senator, I would say that the great majority of—I would say just about everyone in the Office of Government Ethics has the same view that I do, but Senator COHEN. Can you tell us anyone who doesn't? Senator COHEN. Yes. Mr. MARTIN. No. Senator COHEN. So it is unanimous then? Mr. MARTIN. It would be, yes. Senator COHEN. OK. As I read this particular legislation, there is nothing that would alter the application of the law that would deal with confidential disclosures by midlevel executives? Mr. MARTIN. That is correct. Senator COHEN. So if we were to recommend passage of this bill, then we could have the "anomalous" situation of having congressional and top-level executive branch officials who file public disclosure forms being given a civil penalty at best, while those midlevel personnel in the executive branch who file a confidential statement being prosecuted criminally? Mr. MARTIN. That is correct, unless I-and I think I read Judge Scalia's opinion correctly. There could be no repeal by implication of the confidential-in other words, if someone tried to make an argument, well, since as to public filings there is no criminal attachments to that, and perhaps by implication Congress meant to have the same provisions apply to confidential statements. I don't see that that is possible, and so, yes, the answer to your question is people who file a confidential report would still be subject to the criminal provisions of 1001. Now, may I add something to that? Senator COHEN. Sure. Mr. MARTIN. I view that as, yes, an anomaly and as an unsatisfactory situation. I think that- Senator COHEN. Does everybody in OGE view it that way as well? Mr. MARTIN. Well, I can't speak for everyone, but I think that my senior staff would agree with me. Senator COHEN. So you are satisfied, at least in your own mind, that this legislation could create a double standard where criminal penalties could be imposed on mid-level Federal employees and no criminal penalties against top Federal employees? Mr. MARTIN. I am satisfied that is correct. Senator LEVIN. Was there some kind of a discussion with you and OMB and the Department of Justice in terms of your position on this? Did you have a chance to argue your cause in some joint meeting? Mr. MARTIN. No, I did not attend a joint meeting. Senator LEVIN. Were you invited to participate before the administration's position was decided? Mr. MARTIN. I was not. Senator LEVIN. Well, isn't it a little anomalous―― Mr. MARTIN. Our position was known. Senator LEVIN. Isn't it a little anomalous that the Director of the Office of Government Ethics isn't invited to argue a position on an issue involving ethics? Mr. MARTIN. I think your question is self-answering. Senator LEVIN. Does that mean you agree that it is a little bit anomalous? Mr. MARTIN. Well, I-but my position was known, Senator. I mean Senator LEVIN. Yes; but you also should be invited to argue the merits of your position, shouldn't you? It should not be just "known." If someone is going to decide to do something involving ethics in Government, shouldn't they invite you to argue your position and not just simply get a piece of paper? Mr. MARTIN. I would think so, but I am not sure there ever was such a meeting. I only know that there were meetings with the Department of Justice, and I was not invited, nor did I feel proper inviting myself to meetings with the Department of Justice where they were debating what position they would take. Senator LEVIN. Did you submit your testimony to OMB before you brought it with you today or sent it in? Mr. MARTIN. I did. Senator LEVIN. Was your original testimony different than the one that we finally got? Mr. MARTIN. Yes. Senator LEVIN. So OMB changed your testimony? Mr. MARTIN. That is correct. Senator LEVIN. Did you argue with them? Mr. MARTIN. Well, we presented our position, yes. Senator LEVIN. In person? Mr. MARTIN. No. Senator LEVIN. On the phone? Mr. MARTIN. By phone. Senator LEVIN. By phone to OMB? Mr. MARTIN. Yes. Senator LEVIN. And they just said what, "it had been decided, sorry," or what? Mr. MARTIN. Well, the suggestions were transmitted to us over the phone as to what the position-the administration position would be. Senator LEVIN. So that you were told what the position of the administration was? Mr. MARTIN. Yes. Senator LEVIN. Period. And you weren't invited even then to argue your cause? Mr. MARTIN. No. Senator LEVIN. Did the OMB tell you who had decided this in the administration? Mr. MARTIN. I didn't inquire. Now, Mr. Davis did a lot of the phone work on that. Maybe he can answer that. Senator LEVIN. Mr. Davis, did the OMB tell you who had made this decision? Mr. DAVIS. No, sir, Senator, they did not. Senator LEVIN. Did you ask? Mr. Davis. No, sir; not in the sense of individual names. It is my understanding, and based on the conversations I had, that this is coordinated with the Department of Justice, Counsel for the President, but as far as specific names, I don't know who was involved. Senator LEVIN. Well, I would hope in the future that when the Office of Government Ethics has a position on an ethical issuethat when it is told that its position cannot be made public and that its testimony is going to have to be changed before it is delivered to a congressional committee-that you would insist upon being heard on your position. I think that that is a minimal position for you. I can understand why you are not going to deviate from the administration line publicly, but what I can't understand, frankly, is why you don't insist upon being heard inside the administration before they put a damper on your own position-before they gag you. That is what I think you should be insistent on as the Office of Government Ethics. I know you are under some constraints and there is nothing perhaps there that is particularly surprising-that you are going to have to stick to the administration line-but it is somewhat surprising to me that when you submit testimony to the OMB saying one thing on a critical ethical issue here, involving a double standard and the public perception of whether or not Government officials are going to be bound by the same rules as a postal clerk, that when you are told, "sorry, that can't be your position," that you be more aggressive in saying, hey, wait a minute, I want to be heard on that issue. That is my advice to you, for what it is worth. Senator LEVIN. Thank you. Senator COHEN. Could I inquire, the same question I asked before, if we were to recommend that this proposal be amended to provide only civil liability for any Federal official, any Government employee, would you be in support of that or against it? In other words, we have no double standard. We say we are going to apply the same standard to everybody. Mr. MARTIN. No, no. No, Senator, speaking for myself, I would prefer to see that warning on the 278 and on any form that we put out, the Office of Government Ethics puts out, that there is a penalty, a criminal penalty could be associated with it. We would prefer not to use it. We would prefer to go to civilly in most instances. But I would like to see that there. Senator COHEN. So you want to maintain uniformity at the criminal level, not just the civil level. Senator Rudman. Senator RUDMAN. Mr. Martin, your personal views, I guess, are what I am interested in because quite obviously your official views are not your own views. How long have you been practicing law? Mr. MARTIN. Practicing law? Senator RUDMAN. Yes. Mr. MARTIN. About 15 years. Senator RUDMAN. You have worked on constitutional issues? Senator RUDMAN. OK, then I expect you will understand the question I am about to ask you because I think there is a very hidden issue in this proposal. Can you find, in your view as a lawyer of 15 years' experience with some constitutional law practice, any rational basis for a different standard between treating Members of Congress one way and everyone else another way in regard to false statements? Can you find any rational basis for that? Could you find any rational basis for that? Mr. MARTIN. No, I can't. Senator RUDMAN. Well, I can't either, and under U.S. Supreme Court cases on equal protection, if you cannot find a rational basis for discrimination and the class is not otherwise suspect, then the statute which authorizes the discrimination will be struck down. So, Mr. Chairman, I think we might be in the truly anomalous situation here, where if we were to pass this law and the President were to sign it, that the first defendant who was not in the preferred class, and who challenges the constitutionality of the statute, will succeed in having section 1001 thrown out for everybody. I mean, as far as I am concerned, Mr. Chairman, this statute fails on any equal protection argument, particularly on that one. I think anybody who knows anything about the Supreme Court cases dealing with equal protection would share that view, and I am just not sure that we want to do that unless we do it knowingly and willfully. Mr. MARTIN. Well, I might add to what you have said, Senatorand, Senator Levin, I congratulate you on your perceptions of the need for maintaining public confidence-the Office of Government Ethics does not look at a criminal sanction like this only in terms of its criminal effects, but also as to the implications that are connected with the public confidence that goes with the trust and the reporting of the forms and maintaining the standards in the various executive branches. It is quite important to the Office of Government Ethics, and we view this as just one part of that aspect of the public confidence. |