Sunday, March 26, 2006

Fisking the Dean Johnson ethics committee hearing

Posted by Craig Westover | 11:40 AM |  

I’ll be writing on the Dean Johnson issue again this Wednesday in the Pioneer Press, with some reflective thoughts on what the controversy ultimately means -- why it was and continues to be important. Much can be learned from listening to the recording of the hearing, and for those with the stomach to watch political sausage being made, I recommend listening to it. (Rules and AdministrationSubcommittee on Ethical Conduct)

Journalistically objective news accounts of the ethics committee hearings are found in the Pioneer Press and the Star Tribune. Below are my impressions.


As one listens to the tape of the hearing, one is struck by confusion of the committee members about what exactly it is they are charged with doing and how the process is to work. Listen for the process questions that keep cropping up. The first of these concerned “probable cause.”

“Probable Cause” in the sense the committee is using it is a determination of whether or not the committee should even address the ethics complain as it was filed. Before the committee can address the truth or falsity of the charges it must assert its jurisdiction. It must determine IF the charges were true, do they rise to the level of a violation of the Senate code of ethics.

The committee asked Sen. Johnson if we would consent that there was probable cause so the committee could move on to considering the complaint. Johnson’s attorney, (Ellen Sampson) replied “Absolutely not. Sen. Johnson will not concede probable cause.”

At the point, the public committee hearing adjourned into closed session. Here’s how this works. In closed session the committee debates whether or not there is probable cause -- whether or not the complaint (IF it is true) rises to the level of violating Senate rules. The session is taped for the record. However, if the determination is that there is no probable cause, that EVEN IF THE COMPLAINT WERE TRUE, the charges do not violate Senate rules, then the tape is sealed, and the complaint is then publicly dismissed for lack of probable cause.

If however, probable cause is determined, as it was in the Johnson case, then the closed session tape becomes publicly available and part of the public record. That being the case, one can understand why the determination of probable cause is so important to both sides.

In Closed Session

Johnson did not speak in the closed session until very near the end. All comments were made through his attorney. That shouldn’t be construed as a negative against Johnson in the sense that its prudent when one is so close to the issue that a more reasoned voice is a better course of action.

Johnson’s attorney made the case that there is no probable cause (as defined above). She stated that Johnson did in deed have meetings with state Supreme Court justices where the gay marriage issue was discussed. She stated that the actions of the Court in this matter were beyond the purview of the Senate Ethics Committee. Johnson was not naming names and didn’t want to drag the Court into the issue. Johnson’s comments were what they were -- “wish was the father of the thought” -- but it was speech, not action. Past ethics hearings dealt with action not speech.

First she played the guilt card -- have others not ever misstated something? Then she used the lawyer’s ploy of stating that she isn’t going to state something. If the issue were not gay marriage, she said, would we be here today? What, she asked is the motivation of the groups that raised this issue was a question? But Sen. Johnson did not want to get into that.

Let me add an aside here. The tape was played for me by Minnesota for Marriage. I’d been hearing from that organization for some time and from others not associated with the group, that Dean Johnson was, on numerous occasions, citing conversations with the Supreme Court to support his contention that a marriage amendment was not needed. The frustration felt by the Minnesota for Marriage people was that no one in the Press was interested in Johnson’s use of the Court to push his political position. I sense that was the motivation for the taping. After my column broke on Wednesday, I had a conversation with the group’s spokesperson, and they were at that point, deciding whether or not to make the tape generally available, which they did. The point being, releasing the tape was not really an organized or coordinated effort on their part. If anything, my column forced them to do so. Motivation of Marriage for Minnesota has nothing to do with the credibility of Johnson’s comments.

Johnson’s attorney then went on to hit the speech issue. Freedom of speech is a bedrock concept, she said. Johnson’s remarks were a mistake, but they were speech, not action. We have freedom of speech. She quoted the Biblical injunction “Let he who is without sin cast the first stone.” Her contention was that to punish Sen. Johnson for an inaccurate statement was beyond the purview of the committee -- this was not probable cause.

My impression at this point was Johnson was scoring big time. The senators that brought the complaints forward, Mike McGinn, Eagan and Claire Robling, Jordan, seemed weak, lacking stomach for a fight. In comments made after the hearing at a press conference, they noted they didn‘t really know why they were chosen to present the case other than they are generally regarded as “quiet“ members of the Republican caucus, less partisan than others. I do not imply they did not believe in what they were doing. I just sensed they were over matched by attorney Sampson.

McGinn did bring up (following attorney Sampson’s remarks about speech) that if there was no finding of probable cause, the public might not be satisfied. Quietly, but eloquently, he stated there would still be a cloud over Sen. Johnson and the Supreme Court. As long as the question remains, he said, the question will haunt us. To know what the right thing is and not do it is the purest form of cowardice.

At this point in the hearing, there is a lot of discussion and cross talk about what might happen if the complaint went forward and an effort was made to determine the truth of Johnson’s statements. Could members of the state Supreme Court be compelled to testify? How would the question of immunity play out? What are the Separation of Powers issues? Only the House can impeach a justice. This is not an impeachment issue and the Senate has no authority in that area other than trying a case brought by the House. There is a Board of Judicial Standards to handle such issues.

Here I would note the committee has strayed from its charge to determine probable cause. These discussions have nothing to do with whether or not Johnson’s comments, if true, rise to the level of violating Senate rules. They have to do with what the committee would have to do if it determined there was probable cause, what the problems might be in proving whether or not the complaint against Johnson is true. Probable cause should not hinge of the consequences of its own determination. The committee here is looking for the path of least resistence, not the road to the truth.

At this point, we have arrived at the money quote of the hearing (approximately 41:10 of the recording). In response to a question, Attorney Johnson stated (this is a paraphrase) --

There were three meetings in Sen. Johnson’s office with a member of the Court (not clear whether this was the same member or a single different member on three different occasions) with others present where gay rights was a part of the discussion. Also a couple less formal discussions -- one with someone other than Johnson and the justice present, one with no other person present. In none of the discussions did a justice make any assurance or commitment to Sen. Johnson concerning DOMA. The topic was discussed in general terms. Johnson took from these discussions to form his opinion, stated it badly, and has apologized.

This is a statement that tries to have it both ways. It says that Johnson was telling the truth when he said he discussed DOMA with state Supreme Court justices, but allows wiggle room by saying he received n assurances. The tactic here is that Johnson is putting the the burden of proof on the decision of the committee. If they want to determine if Johnson is telling the truth, they must imply the accusation that members of the Court have violated judicial ethics. Johnson is assuring them, the conversations were no big deal. If they want to call the Court into question, the onus is the committee, not Johnson.

This was followed by more discussion and cross talk about specifics of the transcript of the entire tape from New London. The main issue was appearance from the transcript (it was obvious none of the committee members had listened to the actual recording beyond the specific quote) that Johnson had been cut off after he made his remarks and did not have a chance to clarify them. I have listened to Johnson’s remarks about the Court in the context of surrounding conversation. He does not appeared pressured. The question is respectful.

Late in the hearing Robling points out that since making the comments, Johnson has had plenty of opportunity to clarify them. I would add that I tried for over a week, delaying my column for a week, to talk with Johnson and give him the opportunity to comment on his remarks. He chose not to respond.

At this point, attorney Sampson said Johnson took his opinion of what he heard in discussion with Justices and turned it into an assurance. That does not bring dishonor to the Senate.

Here she made another Jack McCoy, television lawyer-like trick. She noted that during the New London meeting, Sen. Johnson saw a pastor that is active in the “anti-gay movement” with a backpack on the table. He cannot say the pastor was there purposely to “entrap” Johnson. Johnson is not going to comment on that. It does look like he was cut off in the middle of his comments, but he made the comments, he’s sorry for it, and the rest is history.

A comment before proceeding. If the purpose of the ethics committee was putting the Johnson issue behind us by finding the truth, it failed. It did not merely not find the truth. It raises new questions about the integrity of the Court.

Committee member Tom Neuville said he was dismayed that Johnson would not admit probable cause. He quoted Senate Rules about avoiding dishonest statements and then ran through the litany of Johnson’s changes statements about what he did or did not say and what he was or was not told by state Supreme Court Justices.

Neuville also said “I think a Supreme Court judge might have said it.” He didn’t think the committee could decide that in front of cameras in an open meeting.

“I’ve talked to Supreme Court justices, too . . . .” he said and then stopped. He asked if the recording will be made public. Told, yes if probable cause is found, there is some laughing on the recording and some joking about going back an erasing. Neuville goes on “I think Supreme Court justices could have made such statements." He suggests turning off the mics and negotiating with Sen. Johnson. This idea is quashed quickly. Neuville moves that there is probable cause.

Sampson points out that Johnson’s remarks were not made on the Senate floor and then there is a five-minute recess for her to confer with Sen. Johnson.

Say what you will about Dean Johnson, but it is hard to deny he is a leader. On “At Issue” today, former Governor Wendell Anderson noted that Johnson was minority leader in the House as a Republican and majority leader in the Senate as a Democrat. “It takes skill to do that,” he said. Indeed it does. And it takes skill and leadership to stand accused and take charge of the hearing and design your own “punishment.” That’s exactly what happened.

At this point, the committee is in disarray. It is clear there is no stomach for confronting the state Supreme Court and determining who is telling the truth and who is lying. With Johnson’s offense being framed as simple exaggeration, no one on the committee wants to risk the tag of hypocrite the next time he speaks on the Senate floor. No one is anxious to tie the bell on the cat’s tail of the truth. It’s a good reminder -- all that is necessary for evil to prevail is for good men to do nothing.

Sampson comes out of the adjournment with a proposal. Sen. Johnson does not believe he violated Senate rules and his comments do not rise to that level. He made an inaccurate statement and some of his explanations were not accurate. He is not interested in challenging the statements of the Court. Johnson is willing to conceede probable cause and make an apology.
Speaking as for the committee, chairman Sen. Jim Metzen says that’s what “we” were thinking. At a minimum more of an apology than just a newspaper statement. Suggestion is made that a letter of apology be sent to the pastors in New London and to the Supreme Court.

Sampson’s immediate reply is Johnson is willing to admit probable cause, but not write a letter to the Court. Their comments are their business. He is willing to write a letter to the pastor that organized the meeting and if he wants to share it with others, that’s his affair.

What followed is anti-climatic. Some arguing over the language of the committee resolution and just what Sen. Johnson was admitting to and what he was apologizing for. Sampson summarizes saying that the committee finds probable cause, but Sen. Johnson does not agree, but does agree his comments were wrong, and he agrees to apologize.

I’m not sure I understand, but it sounds like originally Johnson was trying to appear truthful by lying about the truth that he did have conversations with multiple members of the state Supreme court. Now he is trying to regain his honor by telling the truth about lying about the fact that he was indeed telling the truth.

That seemed to satisfy the committee. For the record, Neuville states that he thinks the Court is also telling the truth and that there is a misunderstanding between the Court and Sen. Johnson.

Some more disjointed discussion. Sampson emphasizes the definition of probable cause and that with finding of probable cause the committee is not commenting on the truth of the complaint. Sen. Johnson does not agree with the probable cause finding (although remember, it was his attorney that suggested this line of negotiation), but he is prepared to apologize.

To this point, except to affirm in answer to a question that he would not question the motives of those that brought the complaint, Johnson had not spoken during the hearing. At this point, he raises three questions (and I would ask, are these the immediate questions of a contrite man?).

He first asks if the committee's finding can be used against “Dean Johnson” on campaign literature? He notes he has a military career and should the opportunity for promotion to arise, could the committee finding be considered? He also asks what impact it might have if he applied for a corporate job.

There’s more cross talk, no definitive answer. Some comments about what happens if the case goes forward and then a vote on the final resolution that essentially states after Sen. Johnson apologizes on the Senate floor and writes a letter to the pastors (no one on the committee pursued the issue of a letter to the Court) the complaint will be dropped. The vote is 4-0 in favor of the resolution.

After the Closed Door Session

Not on tape, but broadcast on Channel 17 later Friday afternoon, the four members of the ethics committee held a press conference and talked about what an uncomfortable situation it was and how their resolution sought to avoid conflict. [Note -- not to find the truth.]

One of the reporters asks about getting to the truth of the matter. The committee members look at each other waiting for someone else to take it. Sen. Metzen finally says he doesn’t know how to answer. Neuville adds that even if the committee moved forward, there was no guarantee they could have gotten to the truth. Pressed on this issue later, he said “Some things are not resolvable.” The committee did resolve the issue relative to the rules of the Senate.

The committee notes that an apology on the Senate floor is not easy. The committee tried to avoid politics. It was a bipartisan vote. When pressed for the content of Sen. Johnson’s apology, no member of the committee could say exactly what it is he would apologize for. But they agreed, the process worked.

But perhaps the best ending to this summary is the words of Dean Johnson himself. His interpretation of the hearing (paraphrased from a clip on today’s “At Issue”) --

“I don’t think I violated Senate rules, and (apparently) the committee agrees with me. I’ll apologize for my comments, and we’ll move on.”