Good morning and happy Friday.
Police Reform Talks In the Spotlight
A bipartisan group of lawmakers is aiming to conclude long-running talks over a potential compromise on police reform legislation in the coming weeks.
Members of Congress are facing increased pressure to come to an agreement after former Minneapolis police officer Derek Chauvin was convicted this week of murder in the 2020 killing of George Floyd. Activists have renewed their efforts in recent days following the death of 20-year-old Daunte Wright, who was shot and killed by a Minnesota police officer after being pulled over for expired tags earlier this month. Now-resigned police chief Tim Gannon said the officer, Kim Potter, intended to use her Taser on him but instead shot him with her firearm. Potter has been charged with second-degree manslaughter.
South Carolina Republican Sen. Tim Scott, who introduced a police reform bill last year, told reporters this week that his discussions with Democrats on the issue have been fruitful.
“We’ve made progress. We still have to make progress, but we have come a long way since last summer,” Scott said as he left a vote series Wednesday. “The important principles that are still outstanding, I think we’ve made progress on all of them.”
Scott is in talks with Democratic New Jersey Sen. Cory Booker, alongside members of the House led by California Rep. Karen Bass, also a Democrat. Bass told CNN this week that she is hopeful about the odds of passing legislation soon. Under current Senate rules, any deal would require support from all Democrats and at least 10 Republicans to make it to President Joe Biden’s desk.
“I am hopeful because the group of people where we’ve been having just informal discussions are very sincere, and it’s a bipartisan group, and I believe that we want to make something happen,” she said. “Senator Scott is a key. I think he has been a complete honest broker. It’s been very helpful working with him.”
House Democrats and Senate Republicans introduced two separate bills to address policing in America last summer after the killing of George Floyd. Both bills contain provisions to increase officer training and the oversight of police use of violence. They differ in their approaches to the issue. Republicans view the Democratic bill as too extreme and too heavy on federal intervention, while Democrats argue the GOP plan is not sufficient.
The House has passed the Democratic bill twice, but it has not received a vote in the Senate. Senate Democrats, for their part, filibustered the GOP legislation last year and blocked it from advancing to a full vote. Some key differences in the two bills are outlined below, drawing from this report from the wonderful Congressional Research Service:
Chokeholds: The House bill, titled the George Floyd Justice in Policing Act, would establish more stringent use-of-force rules for federal officers and would require states and localities that receive certain federal funds to ban the use of all chokeholds. Senator Scott’s JUSTICE Act, the Senate GOP bill, would also condition law enforcement-related federal funding for states and local governments on a requirement that they develop policies banning the use of chokeholds, except in instances where deadly force is authorized. It also calls for a similar policy at the federal level.
No-knock warrants: The Democratic bill would ban no-knock warrants at the federal level in drug cases and would encourage states and local governments to impose similar bans. Scott’s bill includes provisions to gather data on the use of no-knock warrants but does not involve a ban on the practice for federal law enforcement.
Body cameras: The House bill would require the use of body cameras and video recording in police vehicles for federal law enforcement officers. The Senate GOP bill does not include a similar requirement for federal officers. Both bills, however, would provide grants to boost the use of body cameras in state, local, and tribal law enforcement.
Qualified immunity: The Democratic bill would end qualified immunity, the doctrine that significantly shields law enforcement officers from liability. Republicans are largely opposed to ending qualified immunity, arguing police should have legal protections in the course of their work. Scott has instead proposed that the legislation could make room for legal action against police departments, agencies, and cities as a whole instead of individual officers.
“Leadership starts at the top—full stop,” Scott said in a statement shared with The Dispatch last month. “I am open to having conversations on civil qualified immunity as it relates to police departments, cities, and municipalities being held accountable for the actions of those they employ.”
Democrats aren’t totally on board with that idea, although some have agreed that cities and agencies will be more responsible if they are worried about lawsuits.
“No,” Rep. Jamaal Bowman, a progressive freshman from New York, told CNN this week when asked about Scott’s qualified immunity alternative. “Individual police officers absolutely should be held accountable.”
Scott and the Democrats involved in the talks have stayed mostly quiet about the details of the potential compromise. There are still a range of sticking points, and it’s not clear a deal that can pass will actually emerge.
President Biden has urged quick action on the issue. He said this week he assured George Floyd’s family after Chauvin’s conviction that he will continue to fight for passage of the Justice in Policing Act “so I can sign the law as quickly as possible.”
White House press secretary Jen Psaki said Biden will elevate the issue during his joint address before Congress next week, but he isn’t taking a direct role in the negotiations.
“The stage we’re in now is that leaders on the Hill need to have discussions among themselves about where they can find agreement,” Psaki said Wednesday. “The best strategy—the most effective strategy—is to allow for space for those conversations to happen privately. Once they come to agreement, and we’re certainly hopeful they’ll do that, we’ll have to take a look at what that looks like.”
What’s Next in The Gaetz Investigation?
The House Ethics Committee announced earlier this month it is looking into allegations that Florida Rep. Matt Gaetz engaged in sexual misconduct, shared inappropriate images of women on the House floor, and improperly used campaign funds, among other potential violations of the House rules and federal law.
What does that investigation entail? I spoke with David Laufman—a partner in the Washington D.C. office of Wiggin and Dana who previously served as an investigative counsel for the House Ethics Committee—earlier this week to get a behind-the-scenes look at what comes next.
The House Ethics Committee is in an initial fact-gathering phase right now. “In the procedural posture they are now in, they have limited authority,” Laufman said. “They could conduct, through the nonpartisan staff of the committee, voluntary interviews with individuals, staff or members who might be willing to speak with them on a voluntary basis or produce documents voluntarily in response to a request. But they only have authority presently to engage in consensual fact gathering or gathering information through open source records. They don’t have any authority currently under committee rules to compel anyone’s testimony or to compel the production of documents.”
There is no assigned time period or deadline for the threshold preliminary work. Any indicators the public will receive about the committee’s progress will be outward-facing—for instance, if someone shares that he or she was paid a visit by an attorney for the Ethics Committee. In the absence of that, “it’s likely we won’t hear anything further until they complete this phase,” Laufman said.
The panel is the only standing committee of the House that is evenly divided between the two parties. It is made up of five Democrats and five Republicans. “Nothing of any consequence can happen on the House Ethics Committee unless there is a bipartisan majority for it—unless at least one person crosses over,” Laufman noted.
“The legitimacy of what they do in large part hinges on the public perception of non-partisanship, and that perception turns of course on the perception that there’s bipartisan support for any adverse action they may take, or, conversely, a decision to forego taking adverse action,” he said.
If there is agreement to move forward after the preliminary fact-gathering phase, the committee would establish an investigative subcommittee. The investigative subcommittee is also split evenly between the two parties and typically consists of two members of the full committee and two members of the House who are not on the committee. This is when the investigation takes place in earnest: Nonpartisan staff form a detailed investigative plan, seek to speak to witnesses, and ask the subcommittee to approve subpoenas.
It can be a lengthy process. And the subcommittee work isn’t done in the most productive surroundings, at least in Laufman’s experience. Lawyers typically develop a carefully constructed line of examination to dig into some question related to the investigation, he said, “but imagine trying to do that when the clock is ticking, bells are going off for votes on the House floor, members are looking at their watch.”
“It’s just the most challenging environment in which to conduct an actual public corruption investigation you can imagine, compounded by the fact that you’re doing this in a system of essential peer review, which makes a lot of members uncomfortable in the first place,” he said.
If the subcommittee learns of information that points to new violations, the members of the panel would have to affirmatively vote to expand the scope of the investigation. Obtaining a favorable vote to expand the probe can be difficult, especially if the matter is controversial. Party leaders can sometimes play a role in these decisions, even though they aren’t on the panel.
“What happens within the Ethics Committee often is a function of what the leadership on either side of the aisle either directs or authorizes or blesses to happen,” Laufman said.
If the subcommittee finds substantial reason to believe a violation of the code of official conduct or the law occurred and there is a majority vote in favor, the panel adopts a statement of alleged violation. This statement includes a detailed recitation of the facts of the investigation and is shared with the House member in question to give them a chance to respond. The full Ethics Committee ultimately votes on the report as well.
The full House has the power to expel members in response to violations. The last representative who was expelled was Ohio Democrat James Traficant in 2002. In 2010, New York Democrat Charlie Rangel was the most recent member to be censured by the House, a less severe punishment. The House also has the power to reprimand members, a step down from censure. Most recently, Arizona Republican Dave Schweikert was formally reprimanded for campaign finance abuse, among other violations, last year.
Laufman added that the committee will likely coordinate with the Justice Department to some degree to ensure they are not stepping on any toes with their lines of inquiry. Given the media reporting about Gaetz thus far, Laufman said, it’s difficult to imagine the Ethics Committee not moving ahead with establishing an investigative subcommittee. “The only reason I can see that may justify them forgoing that is if they gave further consideration to whether the committee should defer to the Department of Justice in its conduct of a criminal investigation,” he told The Dispatch.
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