No Ethics Investigation for Reps. Gutierrez and Chu

On December 21, 2017, the House of Representatives Committee on Ethics issue a report captioned "In the Matter Regarding the Arrests of Members of the House during a Protest outside the United States Capitol on December 6, 2017". In that report, the members of the committee "voted against impanelling an investigative subcommittee in this matter", which involved the arrests of Reps. Judy Chu (D-Calif.) and Luis V. Gutierrez (D-Ill.) "for Crowding, Obstructing, or Incommoding" during a December 6, 2017, protest over the "DREAM Act".

That incident was part of a larger protest involving approximately 2,000 "young immigrants and their supporters". Chu and Gutierrez were part of a smaller group of more than 200 protesters who reportedly "staged a sit-in on the U.S. Capitol steps and in a civil disobedience act were arrested for refusing to move." As NBC News described the incident:

Capitol Police told participants who did not want to be arrested to step over to the sidewalk, Chu's office said. Those taken into custody, who were given multiple warnings about being arrested, were organized into groups of 15 and brought over to a holding pen area, according to Chu's office.

The exact circumstances of that protest and those arrests are not entirely clear from press reports. The Daily Caller reported: "Capitol Police appeared unprepared for such a huge number of arrests but the force was quickly able to adapt, surrounding the protesters before giving the customary three warnings to disperse before legal action would be taken." The Pittsburgh Post-Gazette, in its coverage of the incident, stated, on the other hand: "Event organizers said they arranged with U.S. Capitol Police in advance that the roughly 200 protesters who refused to leave the Capitol steps would not be detained but would pay a $50 fee."

What is clear, however, is that (1) the protestors were given wristbands instead of being placed in handcuffs and (2) Gutierrez and Chu both tweeted photographs of their arrests from the scene.

Chu's tweet suggests that the report concerning the $50 fee was correct, as she appears to be holding that amount in cash in her photograph. In addition, the Ethics Committee Report states: "Representatives Chu and Gutierrez paid a $50 fine and were released following their arrest. The legal proceedings related to those arrests are now resolved."

This action was in apparent violation of section 22-1307 of the Code of the District of Columbia, which makes it "unlawful for a person, alone or in concert with others ... [t]o crowd, obstruct, or incommode ... [t]he entrance of any public ... building or enclosure," and "[t]o continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease the crowding, obstructing, or incommoding." That crime carries a maximum penalty of 90 days in jail and/or a fine of $500, or both.

The Ethics Committee report does not state what action could have been taken by the committee had an investigative subcommittee been impaneled, and the 456-page House Ethics Manual does not provide much guidance. It would appear, however, that the investigation would have related to House Rule XXIII, clauses 1 and 2:

CODE OF OFFICIAL CONDUCT

There is hereby established by and for the House the following code of conduct, to be known as the ''Code of Official Conduct'':

1. A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.

2. A Member, Delegate, Resident Commissioner, officer, or employee of the House shall adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.

There is a strong argument to be made that the actions of Chu and Gutierrez violated these provisions.

Although I have taken many oaths to uphold the law, I am cognizant of the important role that "civil disobedience" plays in a free society. In his 1849 essay on the subject, Henry David Thoreau wrote:

This American government- what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It has not the vitality and force of a single living man; for a single man can bend it to his will.

There are many who would agree with the sentiment, even today. Thoreau, Gandhi, and the Rev. Martin Luther King, Jr. each utilized civil disobedience to change society for the better.

The Encyclopaedia Britannica defines it as follows:

Civil disobedience, also called passive resistance, refusal to obey the demands or commands of a government or occupying power, without resorting to violence or active measures of opposition; its usual purpose is to force concessions from the government or occupying power. Civil disobedience has been a major tactic and philosophy of nationalist movements in Africa and India, in the American civil rights movement, and of labour, anti-war, and other social movements in many countries.

Some may question, however, whether in the best of circumstances a legislator with the power to change the laws should engage in such activities, particularly to "force concessions from the government". Members of Congress, as a consequence of their positions, have the ability to actually bring about the change that they demand; all that they need to do is to convince their fellows of the rectitude of their position.

In fact, in 2010, both representatives had the ability to pass the DREAM Act, but failed to do so, because six members of their own party in the Senate either voted against it or failed to vote. Even at the time, Gutierrez appreciated the magnitude of his responsibility to convince his fellow members of the rectitude of his position as related to that legislation. As Fox News reported following House passage of that bill:

Rep. Luis Gutierrez (D-IL), one of the main backers of the DREAM Act, believes this is the last chance he has to pull this legislation across the finish line.

"Once the Congress of the United States changes hands and the House of Representatives is in the hands of the Republican Party, I don't see any movement on comprehensive immigration reform," Gutierrez said.

Moreover, the protest in question was more of a political "stunt" than true civil disobedience. Accepting the news reports above as true, the entire event was stage-managed political theater: A deal was brokered that a $50 fine would be all the punishment that would be imposed for their action. Anyone familiar with politics knows that photo opportunities are a key tool associated with any campaign. If you were to go to your state "Lincoln Day" dinner (for Republicans) or similar event (for Democrats), you would likely be told that for an additional fee, you could have your picture taken with the keynote speaker or other guest of honor. Quite frankly, $50 probably wouldn't get you a picture with a small-town mayor or county official. These representatives got off cheap.

In reality, the most likely purpose of these representatives' actions was to discredit the House, an arguable violation of Rule XXIII. It would be difficult to believe that any member opposed to a so-called "DACA fix" would change his or her vote because two of their fellows opted to pay a $50 fine and tweet out pictures. Instead, the most likely purpose of the actions of the two was to cast those who disagreed with them in a poor light.

There is also the issue of the effect that this action had on Capitol security. Capitol Police officers have the most difficult job of any police organization I can think of. In performing their duties, they must regularly deal with the peculiarities and agendas of some of the most powerful people on the face of the earth. And those duties are not easy.

The Capitol has been the target of attempted attacks in 1954 and 1998, the latter resulting in the deaths of two Capitol Police officers. I was in my office on Capitol Hill when officers, at risk of their lives, directed the evacuation of the complex on September 11, 2001, in the face of fears that United Airlines Flight 93 was headed in our direction. In June, two officers were injured protecting the House majority whip and several other Republican members of Congress on a baseball field in Alexandria, Va.

It is reprehensible that members of Congress would use those officers as a prop to advance their legislative, and political, agendas.

It would have been difficult for the Ethics Committee to have acted differently in the face of such "political speech". And, had it referred these matters to an investigative subcommittee, it simply would have advanced those agendas further. That said, a $50 fine seems like an easy out for two powerful people.