Senate ethics investigation must apply vague standard

WASHINGTON -- A guilty plea to a misdemeanor? The Senate's code of conduct is silent.

Handing an arresting officer your Senate business card? Nothing there.

Asked to investigate Sen. Larry Craig's conduct in an airport men's room and the aftermath, the Senate's ethics committee must judge him on an intentionally vague standard. Did he exhibit "improper conduct which may reflect upon the Senate."

Craig was arrested June 11 in a Minneapolis airport bathroom after an undercover officer observed conduct that the officer said was "often used by persons communicating a desire to engage in sexual conduct."

A police report said Craig, an Idaho Republican, gave the arresting officer his Senate business card and asked, "What do you think about that?"

After the story of the arrest broke this week, Craig said he "overreacted and made a poor decision" to plead guilty -- without an attorney -- in hopes of making the incident go away quickly. He said he was not involved in inappropriate conduct and is not gay.

Senate Republican leaders, wary of fending off corruption allegations for the second straight election, immediately asked the Senate ethics committee to investigate.

One senator, whose conduct in a U.S. attorney firing is under ethics committee scrutiny, warned against a "rush to judgment" but backed his leaders.

"The action being taken by the Senate Republican leadership is a good first step toward getting the facts," said Sen. Pete Domenici, a New Mexico Republican.

Sen. Ted Stevens, an Alaska Republican whose home was raided by the FBI in an ongoing probe, didn't want to touch the subject. "I spoke to my attorneys about it, and they advise I make no comments about any investigations right now."

A spokeswoman for one ethics committee member, Sen. Pat Roberts, a Kansas Republican, said Roberts "believes this is a serious matter that certainly warrants further review by the committee."

In the mid-1960s, when the Senate approved the current language on improper conduct, the drafters "did not attempt to delineate all the types of conduct" that would be improper, the code explains. The three Democrats and three Republicans on the current ethics committee will have to figure that out.

Craig could face a censure resolution or even expulsion, a decision for the full Senate.

So what is bad conduct? It is behavior "so notorious or reprehensible that it could discredit the institution as a whole, not just the individual," the drafters explained.

To find the type of conduct that would qualify as "notorious or reprehensible," one can only look at past cases. It is unlikely that any would duplicate the sequence of events in Craig's case: his conduct in a bathroom stall; an arrest; a plea to disorderly conduct without hiring a lawyer and, now, saying the plea was a mistake.

Craig never informed Senate Republican leaders, nor did he tell his Idaho constituents.

And in an audiotape of the arrest, released Thursday, a police officer interrogating the senator told Craig: "You're not being truthful with me. I'm kind of disappointed in you, senator."

The catchall Senate standard of conduct "is important and it's real," said Fred Wertheimer of Democracy 21, a group that tracks congressional conduct. "It has been used in a number of cases to find a member engaged in improper conduct."

From the Senate's early days, long before the current language existed, there were instances where the senators felt they knew improper conduct when they saw it. According to the Senate's ethics manual:

--In 1797, Sen. William Blount of Tennessee was expelled for inciting Creek and Cherokee Native Americans against the government. He was not charged with a crime.

--In 1811, the Senate censured Sen. Timothy Pickering of Massachusetts for reading a confidential communication on the Senate floor, although there was no written rule prohibiting the conduct.

--In 1954, the Senate censured Sen. Joseph McCarthy of Wisconsin for behavior "contrary to senatorial traditions," after he refused to cooperate with committees investigating his anti-communist witch hunts.

The first case involving a finding of improper conduct using the current language involved the investigation of Sen. Thomas Dodd, D-Conn.

He was censured in 1967 for financial misconduct. His actions did not violate any specific law or Senate rule then in force, but the conduct was found to be "contrary to accepted morals ... and tends to bring the Senate into dishonor and disrepute."

--In 1990, the Senate denounced Sen. David Durenberger of Minnesota, in part based on his financial arrangements for a condominium he owned. His conduct was deemed to have "brought discredit upon the United States Senate" by a "pattern of improper conduct."

There was no finding that any law or rule had been violated in the condominium arrangement. The ethics committee's chairman, however, said the conduct violated the spirit of federal law, which generally prohibits a lawmaker from benefiting from a contract with the U.S. government.

--In 1991, in the Keating Five case involving interference with financial regulators, the committee concluded that Sen. Alan Cranston, D-Calif., engaged in improper conduct by linking fundraising and official activities.

--And in 1995, the committee found Sen. Bob Packwood, R-Ore., brought discredit upon the Senate by repeatedly committing sexual misconduct through 18 unwanted and unwelcome sexual advances.

"The language is written in ways that cover both institutional misconduct and personal misconduct," said Sarah Binder, a professor of political science at George Washington University and a senior fellow at the Brookings Institution think tank.

"For this particular case, it makes a lot of sense. Senators should have leeway on whether this rises to the level that someone should not be in the Senate.