Secretive Ethics panel will judge Hawley and Cruz

Former President Donald Trump’s impeachment trial will be conducted on the Senate floor, live on TV. The Senate investigation into Sens. Ted Cruz and Josh Hawley will take place behind closed doors by one of the most secretive committees in Congress.

After multiple leading Democrats called for the two Republicans to resign, Cruz and Hawley’s challenge to President Joe Biden’s Electoral College win is now tied up in the opaque Senate Ethics Committee. And while Trump’s impeachment trial will conclude quickly, the probe into whether the two senators played a role in inciting the violent Capitol attack will unwind over an interminable timetable with little hint of where it is going.

The committee says nothing about its business until actions are taken. And it has a lot of business before it: Seven Democratic senators filed a complaint against the two GOP senators who led the effort to object to the election results, arguing that they ‘lent legitimacy” to the cause of those who invaded the Capitol. Hawley fired back with a counter complaint alleging “improper conduct” for partisan gain.

The panel is led by Chair Chris Coons (D-Del.), who called for Cruz (R-Texas) and Hawley (R-Mo.) to resign, and Vice Chair James Lankford (R-Okla.), who planned to challenge the election results himself before backing away after the invasion of the Capitol. Coons and Lankford speak frequently to each other and have a warm relationship, just as Coons did with former Chairman Johnny Isakson (R-Ga.).

And the two senators will keep a tight lid on the highest profile ethics investigation in years.

“Neither of us are going to talk about it at all,” Lankford said in an interview. “We don’t bring up anything on the ethics stuff at all. We don’t confirm anything and we’re pretty lockstep about that.”

Even Hawley, both the subject of one complaint and the author of another, said he had no idea how things would unfold on the committee regarding a timetable or process. On Thursday he said he hoped members of the panel took the issue and his complaint “seriously and will work in a bipartisan manner.” A spokesperson for Cruz said that “it sets a dangerous precedent when ethics complaints are used as a political tool to try to intimidate and punish.”

While Trump will learn his fate in a much-anticipated public vote at the conclusion of his trial, the debate over what punishment — if any — the panel recommends for Hawley, Cruz or the Democrats will grind away behind closed doors. The committee's rules keep all actions of the panel secret without approval by a majority of the committee. The last press release the committee released was in 2017, confirming an inquiry into former Sen. Al Franken (D-Minn.).

The seven Democrats who launched the investigation said they considered various options of how to address Hawley and Cruz’s role after several Democrats called for their GOP colleagues’ resignation. As it became clear that Hawley and Cruz were defending themselves and Republicans had little appetite to punish them, the group of Democrats chose the Ethics Committee as their venue. As of now, it does not appear a censure or expulsion vote would attract any GOP support.

Sen. Tina Smith (D-Minn.), who signed onto the complaint, said her hope is that the committee does a deep dive into how exactly Cruz and Hawley prepared for Jan. 6 and whether there are any connections between them and the organizers of the pro-Trump riot.

“Accountability for the role they played is really important. The Ethics Committee is the place where the Senate enforces its code of conduct and rules,” Smith said. “What they did is unconscionable.”

Asked about Hawley’s counter-complaint asking for a probe of whether Democrats' coordinated with outside groups, Smith responded by pointing above her mask: “You see my eye rolling? Hawley’s defiant. He refuses to accept accountability or responsibility.”

Sen. Tim Kaine (D-Va.), another one of the complainants, said the committee will “conduct whatever investigation question we asked that they need to, without a time limit on how they do it. And Cruz and Hawley have to have a fair forum to present their own thoughts about what happened.”

The committee is generally evenly split between parties, though currently has one vacancy that will be filled after passage of the Senate’s organizing resolution. In addition to Coons and Lankford, Sens. Jim Risch (R-Idaho), Jeanne Shaheen (D-N.H.) and Brian Schatz (D-Hawaii) all serve on the panel. That means one more Republican will get the unenviable task of judging their colleagues in the coming days.

By design, actions on the committee are bipartisan. The committee received 251 complaints about alleged violations in 2019; none resulted in discipline.

In 2018 the panel “severely admonished” Sen. Bob Menendez (D-N.J.) for accepting gifts and advancing the interests of a Florida man; in 2012 the committee found that former Sen. Tom Coburn (R-Okla.) had made improper contact with a former Senate aide in 2009.

Sen. Cory Booker (D-N.J.), who defended Menendez during that episode, sees the panel “as a generally fair place where senators don’t have the politics that don’t often come with open air hearings.” Still, he does take issue with some of the committee’s findings against his colleague and said they “sent a chill on behaviors that many thought were OK.” He said if people from other states ask his office for help, he now passes it on to the constituent's home state senator.

That shows how much power even a letter of admonishment can have on senators’ day-to-day business. But it’s not the type of influence that senators really want to have. No one wants to sit in judgment of their colleagues in such a close-knit chamber.

“I served on the committee for a few years,” said Sen. Dick Durbin (D-Ill.). “It isn’t a position anyone seeks.”

Republicans outside the committee say that even though they disagree with Hawley and Cruz’s conduct, they oppose using the committee to probe electoral objections, which they see as a break from investigations that often center around issues like improper gifts. Sen. Susan Collins (R-Maine) said she doesn’t agree with anyone seeking to punish senators despite her opposite view of the matter.

“It’s a very slippery slope if you start punishing senators for holding unpopular views and exercising their rights on the Senate floor,” she said. “That’s not what I think of the Ethics Committee as being for. I don’t see how this is an ethics complaint.”

Sen. John Thune (R-S.D.), the GOP whip, said it’s “draconian for the other side to try and take that action given senators’ First Amendment rights.” Still, he said he has great confidence in Lankford and Coons despite being put in a “very tough position” and predicted a “very fair process.”

Durbin said he expected the investigation “to take a long time. Let’s be honest about it, it’s a very serious matter.” Menendez first faced an ethics complaint in 2012, which was paused during a federal investigation, then resumed in 2017. That means the results of the Hawley and Cruz inquiry could land months if not a year after the events of Jan. 6, 2021.

It’s also unclear what will happen to Hawley’s counter-complaint, which could serve as a referendum on how the Ethics Committee is used. Asked about Hawley’s rebuttal, Kaine said: “It’s what Joe McCarthy would probably have said about his censure resolution in the 1950s.”

McCarthy was censured by the Senate for abusing his position to make accusations about communists infiltrating the federal government. The resolution stated that McCarthy “acted contrary to senatorial ethics.”

Marianne LeVine contributed to this report.