By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, November 24, 2009
For three years, Rep. Alan Mollohan has chaired the important Appropriations subcommittee that controls the Justice Department's $65 billion budget. At the same time, he has been under a Justice Department investigation, according to documents and two sources briefed on the probe.
The investigation has centered on the West Virginia Democrat's finances and nonprofits he created and helped fund in his district, and has put him in the unusual position of wielding control over an agency at the same time it is probing his conduct and contractors he helped while in office.
Some congressional watchdog groups, including the one whose complaints about Mollohan triggered the probe, think the House leadership has created a clear conflict of interest by allowing Mollohan to continue to chair the subcommittee.
"There are a hundred ways he can influence what happens with the department's funding -- without one vote. Everything goes through his committee," said Ken Boehm, chairman of the National Legal and Policy Center, a conservative watchdog group that alleged in a complaint that the congressman had not reported the nature and increasing value of his real estate investments. "If that's not a conflict of interest, I don't know what is."
Mollohan spokesman David Herring said the congressman dealt with the issue in 2006 by recusing himself from voting on specific budget accounts for the FBI, the attorney general's office and other investigative functions. Herring declined to release the letter describing that recusal to House leaders.
Herring also said Mollohan is not aware of the Justice Department inquiry and has not been contacted by investigators.
Ethics inquiries into Mollohan date to 2006, when Boehm filed a complaint with the Justice Department. The complaint focused attention on Mollohan's assets, which had jumped in value from $562,000 in 2000 to at least $6.3 million in 2004. At the same time, he had steered $250 million in earmarks to nonprofit groups whose leaders were sometimes investors with him.
Mollohan initially cast Boehm's complaint as a Republican-funded smear campaign, but in June 2006 he corrected several previous financial disclosure forms and reported he had received a loan from a director of one of the nonprofits. He also hired a legal defense team, and spent more than $157,000 in legal fees in the 2008 election cycle.
In the spring of 2006, news broke that a federal grand jury in West Virginia was examining him. Back on Capitol Hill, then-Democratic leader Nancy Pelosi (Calif.) urged Mollohan to give up his seat on the House ethics committee, which he did.
After becoming House Speaker in January 2007, Pelosi defended her decision to let Mollohan remain as a powerful "cardinal" over the Appropriations subcommittee.
"Quite frankly, I think the Justice Department is looking into every member of Congress. I always say to everybody, 'You're now going to get a free review of your family tree -- past, present and future, imagined and otherwise,' " Pelosi said then.
A Pelosi spokeswoman said the speaker thinks Mollohan's recusal from specific votes addresses any potential conflicts.
After a flurry of subpoenas for nonprofit records in 2006 and 2007, the Justice Department probe went quiet. News that it was still underway was detailed in a document created by House ethics investigators that was secured by The Washington Post last month after a computer security breach. The document listed the status of ethics inquiries into more than two dozen members of Congress, and included a notation on the Mollohan matter, which also has been under separate review by the House ethics committee.
The records show that in July, ethics staff members said Justice Department lawyers asked that "the committee not move forward at this time" with its inquiry into Mollohan. It is standard practice for the ethics committee to stand down on its probe of a lawmaker to avoid a conflict if federal prosecutors have an active criminal investigation of the same person.
Justice Department spokeswoman Tracy Schmaler said agency policy prohibits her from confirming or denying that Mollohan is a subject of an criminal probe. She declined to comment on any potential conflict in his role overseeing Justice's budget.
Some argue that the leaked document confirms how poorly the secretive ethics committee polices its own. The House panel's investigation of Mollohan has been underway for three years, and no action was taken until a new committee staff revived the review this summer.
"What in the world is the ethics committee doing?" asked Sarah Dufendach, vice president of legislative affairs for Common Cause. "It's just insane that it has gone on this long. Either he should go reside in the penitentiary, or he should be cleared and come back to Congress. But we just don't know which, and that's intolerable."
Dufendach said she would not demand that Mollohan give up his subcommittee chairmanship because of the lack of answers from both the ethics committee and the Justice probe.
"Here we have a document that shows DOJ asked the ethics committee to stand down, like they're really running full steam ahead with this investigation," she said. "But all we know is they have been doing this for a really long time."