The hard work done on both sides of the aisle in the House of Representatives to convince the public that lawmakers take ethics and integrity seriously is being threatened from within. Last Wednesday, The Washington Post and POLITICO reported on a confidential report by the Office of Congressional Ethics about a privately sponsored fact-finding trip to Azerbaijan in 2013. On the surface, the stories may appear to be about congressional misconduct — but the real story concerns a battle brewing among the key players in the ethics enforcement process.

According to the Post, the report reflected “the most extensive investigation undertaken by the ethics office,” a fact that can’t be calculated outside the OCE. The story also described the fears within OCE about the reported matter and quoted an anonymous government official who said “OCE feared that the [Ethics Committee] would not take any meaningful action.” If, as this article provides substantial reason to believe, OCE leaked this report because it feared inaction by the Ethics Committee, that is a violation of House rules far worse than the subject of the report itself — the alleged unknowing participation by lawmakers in an otherwise appropriate trip whose outside sponsor may have lied to the travelers and the House about the true nature of the trip's funding. When enforcement agencies such as OCE violate the rules, they rob themselves of the credibility needed to promote integrity.

A little background and explanation are necessary to understand this fight. The House created OCE almost a decade ago in an attempt to promote transparency, integrity and the House ethics process. The office has indeed caused many more allegations and investigations to be made public. The intent was for OCE to be a preliminary review panel that would screen allegations and decide whether or not to refer allegations to the House Ethics Committee. Referrals would come with a report describing the allegations and OCE’s findings, which, in certain circumstances, House Ethics would be required to publish. Though OCE was not intended to be as accusatory as a grand jury, it did serve a somewhat similar preliminary review role. Until House Ethics has reviewed the report, heard from the subject and reached the point of publication, all the work of OCE is supposed to remain confidential.

The context for the current leak appears to be disagreement over a House rule that entitles the Ethics Committee to request that OCE cease its review and refer a matter to the committee whenever the committee is also investigating a case. Because the sole purpose of an OCE investigation is to decide whether to refer a matter to the committee, it makes great sense to avoid duplication of expenses by the House, the subjects and the witnesses, who usually must pay private attorneys (such as myself) to assist them in these perilous proceedings in which misunderstandings can lead to damaging but unproven public allegations.

The article reports that the Ethics Committee invoked this rule and OCE declined to follow it. If this is true, the proper resolution would be a submission to the Rules Committee, not anonymous leaking. At the very least, OCE should wait until 45 days after the referral when the rules require the committee to make a statement. Then, if the committee fails to make the required statement after a proper referral, OCE could seek a ruling on the disagreement. Instead, in this investigation, both the subjects of the report and the Ethics Committee itself were apparently robbed of the opportunity to review the OCE report and findings and to present a thorough response at the time the report is released.

This apparent disagreement is only one of several concerns that have been raised about OCE’s aggressive interpretations of its authorizing resolution and rules in the eight years since it was founded. For instance, while OCE was created to promote an appropriate level of transparency, there was still a recognition that some balance and confidentiality would be needed during investigations conducted in an atmosphere that can feed on scandal. Despite this intended balance, OCE deems the documents it collects, as well as its transcripts and interview memos, to be “findings,” thereby forcing publication of these materials in ways that rarely occur in investigative settings. However, a close reading of the rules and resolution authorizing OCE suggests these materials should be considered “supporting documentation,” which is not supposed to be published with the report and findings.

In these circumstances, it would not be surprising for OCE to develop a bunker mentality and lash out if it feared that disagreements over its interpretations might prevent some of its work from being made public. However, leaks and aggressive attitudes in investigations are not the way to address a hostile population over which one has important enforcement responsibilities.

The House of Representatives should not tolerate an unproductive battle that diminishes the integrity that it has fought to restore to ethics enforcement. It is time for the House, through a bipartisan panel under the Rules Committee, to hear from interested parties in this process and instill a sense of fairness that is sorely lacking. Such reforms could include providing OCE more time to conduct its reviews, but it should also re-establish the intention that disclosure of personal emails and full interview transcripts is not appropriate at such an early stage of an investigation.

Beyond a broader response, the House must also respond to the problems created by this specific leak: A credible investigation into the leak must be conducted and responsibly reported. While it would be tempting to treat the ensuing interviews of the OCE board and staff according to OCE’s own procedures, releasing transcripts and emails at an early stage, this investigation must be handled carefully and confidentially — without leaking. As the Supreme Court has noted about grand jury investigations, such preliminary reviews require confidentiality for the sake of fairness and accuracy. Any hint of ethics inquiries can trigger sensationalized and unfounded accusations of corruption that have a real impact on real people.

In the end, while substantial reason exists to believe that OCE was the source of the leak, a responsible investigation will need to be more open-minded, and go beyond such preliminary conclusions.

Whatever the outcome, the House needs to recover from this brewing ethics scandal — a scandal that threatens to take the House two steps back in the progress it has made.