A House Rules Change You Didn't Hear Much About — and Prosecutors Won't Like

The Office of Congressional Ethics was saved from the landfill  — where House Republicans had tried to bury it — by public outcry and a couple of tweets from President-elect Donald Trump.

But few noticed a sentence that did make it into the package of House rules changes passed last Tuesday, making it more difficult to access documents having to do with the operations of a lawmaker’s office.

“Records created, generated, or received by the congressional office of a Member … are exclusively the personal property of the individual Member [emphasis added]… and such Member … has control over such records.”

Who cares whether a congressional office’s budget documents, maintained at taxpayer expense, belong to each individual member, rather than Congress as a body?

Maybe the Justice Department, for one. In investigating allegations of public corruption or misuse of funds, criminal investigators frequently need to subpoena such records.

Usually, the Fifth Amendment and that bit about self-incrimination does not apply to documents per se, according to Mike Stern, former senior counsel to the U.S. House of Representatives from 1996 to 2004. But there is something called an “act of production” privilege, meaning that just producing the document would be incriminating in itself.

That privilege doesn’t apply to government agencies or corporations. But if a lawmaker is being investigated for misuse of taxpayer funds and law enforcement authorities subpoena her spending records, under this rule, she can assert the privilege to withhold them; they belong to her, not to Congress.

Let’s look back to our favorite disgraced former congressmanAaron Schock (R-IL) to put this in perspective. Yes, the one who lavishly decorated his office to look like a Downton Abbey drawing room and was known for the adventurous antics he shared on his Instagram account. (Who wouldn’t want to see Schock glacier-jumping and riding the waves?)

Schock was indicted for wire fraud, making…

Read more