Choosing to stay and fight, Kihuen could face steep legal fees
Showing no intention of leaving before his term ends, Nevada Democrat Ruben Kihuen is gambling that his finances and his resolve can survive the pressure of a sexual harassment investigation by the House Ethics Committee.
His position puts him in a small group of lawmakers who are betting that it is better to fight allegations than to spare themselves a potentially costly defense and additional embarrassing revelations. So far, Michigan Democrat John Conyers, Arizona Republican Trent Franks and Sen. Al Franken of Minnesota have all simply quit instead of shelling out legal fees and enduring the scrutiny of their colleagues.
In deciding to stay, Kihuen is taking a risk that history suggests could be costly. Former Sen. John Ensign of Nevada paid out nearly $900,000 in legal fees between the beginning of 2009 and the end of 2012, according to Federal Election Commission (FEC) filings.
The time frame coincides with the Senate Ethics Committee’s investigation of Ensign over allegations that he pressured donors and associates to hire lobbyist Doug Hampton, a friend of Ensign’s and a former member of his staff. Ensign had an affair with Hampton’s wife and was seeking to make amends. Ensign resigned in May 2011.
It’s difficult to know exactly how much of Ensign’s legal spending went toward his defense in the Hampton matter because candidates are not required to provide that level of detail in FEC filings. In the two year period prior to the investigation, Ensign listed only $375 in legal fees.
Members are allowed to use campaign funds to cover legal costs so long as those costs are incurred in the performance of their official duties.
According to the FEC, Kihuen’s campaign reported having $486,091 in cash as of the end of September, which he could presumably tap for his defense. Without those resources, a defense could be cost-prohibitive for a lawmaker of modest means such as Kihuen.
In his 2016 financial disclosure, filed in May 2017, Kihuen reported income of $51,939 from the Ramirez Group, a left-leaning public relations firm where he worked before being elected to Congress. He also listed $1,441 from his state senate salary and a checking account valued at between $1,001 and $15,000. Kihuen reported that he carried a credit card on which he owed between $10,000 and $15,000. His finances put him among the less wealthy members of Congress.
Before he resigned, Conyers paid more than $20,000 for legal services through the first nine months of 2017. That spending was likely related to a separate investigation begun in May over whether Conyers paid a former staffer more than $50,000 for work she did not do. His FEC filings for the fourth quarter of 2017, which won’t be available until the end of January, will likely show legal spending incurred after November when the House Ethics Committee opened its sexual harassment investigation on Conyers.
In 2010, former New York Democrat Charlie Rangel ran out of campaign funding for his defense during the culmination of the House Ethics Committee’s two-year investigation into whether, among other things, he failed to pay taxes on a vacation home and inappropriately solicited donations for the Charles B. Rangel Center for Public Service at The City College of New York. He spent about $2 million on his defense during the investigation. Rangel was found guilty by the committee and censured by the House.
“It is certainly not unusual for costs to run into the tens of thousands and it’s possible for that to add up to a much more significant number,” said Robert Walker, an attorney with Wiley Rein and a former chief counsel and staff director of the Senate and House ethics committees.
Factors such as taking witness testimony and requesting documents add to the length of the investigation and the cost of defense, along with ever-mounting hourly fees for top-quality legal representation, Walker added.
By comparison, another lawmaker who is choosing to hang on through the end of his term is Texas Republican Blake Farenthold (R), who was alleged to have harassed a young female staffer and then accused of retaliating against her after she complained. But Farenthold, whose family made their money in the oil business, is among the wealthiest members of Congress. His campaign listed no legal expenditures between 2013 and the end of September of 2017, suggesting he may have paid out of his own pocket. Farenthold’s office did not respond to an inquiry seeking comment.
Jan Baran, an ethics expert at the law firm Wiley Rein, compared facing the House ethics panel to going to court.
Members “are not required to retain counsel, but if they feel like they need an expert—members don’t usually go through the ethics process but once—they tend to do so,” Baran said.
And, much like going to court, costs can vary given the specifics of each case.
“It depends on the process and the complexity of the situation,” Baran said. “An ethics process can be over quickly or it can go on for months and years.”
Kihuen has been accused of sexually harassing a campaign staffer in 2016, a lobbyist while a member of the Nevada Legislature and a woman who works at a Washington, D.C. firm that did business with his campaign.
News of the initial allegation in early December from his former campaign aide led House Minority Leader Nancy Pelosi of California and other Democrats to call for Kihuen to resign. Although he has said he would not seek reelection in the fall, he has rejected the idea of leaving before the end of his term in early 2019. He denies any wrongdoing and hopes to use the investigation to clear his name.
The House Ethics Committee announced its investigation in mid-December. Committee leaders, who have been under pressure to improve the process for victims of harassment, while maintaining due process for those accused, have said they intend to work more quickly than usual on the Kihuen investigation.