The House ethics committee's special counsel recommended yesterday that the committee judge congressmen who accepted cash or gifts from the South Korean government by stricter standards than those used by criminal prosecutors.
In a heavily documented, 83-page "Manual of Offenses and Procedures" delivered to Rep. John J. Flynt, (D-Ga.), the committee chairman, Philip A. Loacovara said, for instance, that members should be punished if they neglected to ask the prupose of such a gift.
Criminal law allows a person to escape prosecution if he didn't have actual knowledge that a gift was meant to influence him.
A current Justice Department investigation of alleged South Korean influence buying on Capitol Hill reportedly has bogged down because of the difficulty of tracing cash payments and proving such knowledge of intent.
Lacovara noted that the committee faced the "perplexing" task of "adapting criminal law provisions to a legislative disciplinary tasks."
But then he argued that members of Congress are "expected to adhere to standards of conduct for more demanding than the bare minimum standards established by our criminal law. In order to protect the integrity of our governmental processes, public officials must take care to avoid even the appearance of impropriety."
Thus, he said, a member should be punished even if he didn't have "knowledge" in the legal sense that a gift was meant to influence him.
"Only by imposing an affirmative duty of reasonable inquiry can the House protect itself against the serious problem posed by creation of actual or apparent subversion on independent decision making," the memo said.
In the same vein, Lacovara recommended that the committee use a "standard of proof" that would be stricter on members than the one used by criminal prosecutors.
Whereas the Justice Department prosecutors must establish proof "beyond a reasonable doubt," the committee should require only that the proof be by "clear and convincing" evidence, he wrote.
Such proof would be less difficult for the committee staff to come up with and thus make more members potentially liable for some punishment.
The memo held though, that the most severe House penalty - expulsion - be reserved for the most serious violations committed with knowledge of the intent.
Lacovara's legal memorandum outlines a variety of possible constitutional, statutory and House prohibitions against accepting "things of value" from foreign powers and recommends punishments ranging from "severe" to none at all.
Rep. Bruce Caputo (R-N.Y.), who furnished The Washington Post with a copy of the document, said he was impressed with Lacovara's definition of the offenses. But he said he hoped the committee would act soon to choose a more specific range of corresponding penalties.
He said he personally felt the conduct of some current House members warrants expulsion if they admit to the committee the acceptance of cash and gifts that they already have acknowledged to the press. He declined to mention any names.
Rep. John J. McFall (D-Calif.) has acknowledged receiving $4,000 in cash from Washington businessman Tongsun Park, a central figure in the inquiry, in 1972 and 1974. He said he put the money in his secret office account at the time because he thought it was illegal to accept it as a campaign contribution.
McFall announced last week that he had been told by the Justice Department that he is not a "target or subject" of their South Korean investigation.
Several other former members have acknowledged receiving large cash payments from Park. But the House no longer has jurisdiction to punish them, even if the ethics committee investigation finds evidence of wrongdoing.
Also in the memo, Lacovara recommended that the committee not investigate allegations that members received gifts of less than $100. He also said that "common sense" dictated that it was not improper for a member to accept such things as an embassy dinner or an honorary degree.
He said it would be improper to investigate whether a member's trip to receive an honorary degree was paid for by the South Korean government.
The prohibitions outlined in the memorandum against accepting gifts from foreign powers include the following:
The constitutional clause that says office holders shall accept no "present, emolument, office or title of any kind whatever from any king, prince or foreign state." Lacovara said in the memo that this would include trips paid for by a foreign power or gifts to a family member.
Since no penalties are spelled out in the Constitution, punishment would depend on the gift's "value, the probable effect of its acceptance and its place in an overall pattern," the memo said.
The criminal statutes ranging from bribery and accepting a gratuity and conspiracy to defraud the United States to "engaging in private correspondence with foreign governments."
Evidence supporting several of these statues would warrant severe penalties, including expulsion, Lacovara wrote. He recommended no penalty for violations of the last, known as the Logan Act, because of its vagueness.
The House Code of Official Conduct provision that forbids accepting gifts of "substantial value" from any person or organization having a "direct interest" in legislation before the House.