The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Sunday, March 14, 2004

Medicare lies - another little litmus test

The bald story - reprint of WaPo story - is that Richard Foster
a nonpartisan Health and Human Services official who has been Medicare's chief actuary for nine years

was threatened by senior USG officials not tell Congressional investigators that USG's prescription drugs bill numbers were low [1].

I'm not clear whether any rules were actually broken: laws (if any) governing the impartiality of officials, or rules about misleading Congress. Or whether there is any appetite on the part of Congressional Dems to make a Federal case out of it. (As it were.)

Independent action on the part of the media I suspect we can discount: the it's only a story if they say it is rule can be expected to apply.

On the other hand, we might be pleasantly surprised.

  1. I think the story was broken by Knight Ridder - March 11 and leaked email.


Reprint of a New York Times story has Senate Minority Leader Tom Daschle saying that
An investigation of some kind is clearly warranted. Whether this is criminal or not is a matter that we will certainly want to clarify. If not criminal, it is certainly unethical.

My impression is that Daschle is not exactly Mr Excitement when it comes to leading the charge.

The law on the matter is the Martha Stewart Special - 18 USC 1001. It seems that it's a piece of legislation which, in the context of statements to Congressional investigators, is one that gets brandished a fair amount. Quite how many prosecutions there have been, I'm not sure.


A little ferreting produces a nugget: §1001 formerly used to apply only to
any matter within the jurisdiction of any department or agency of the United States

The Supreme Court decision in Bramblett v US (1955) decided that department referred to the three departments of the Federal government.

The USSC in Hubbard v US (May 15 1995) decided the word referred to departments of the Executive branch only.

The current wording was substituted by PL 104-292.

My guess is that the Hubbard interpretation was a novel one, since, famously, Admiral Poindexter was convicted under §1001: a useful CRS Report Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry (April 7 1995) states the law as it was before Hubbard overruled Bramblett.

It seems therefore that PL 104-292 restored the scope of §1001 to something approximating what it had been thought to be pre-Hubbard.

What is not immediately apparent is the rights of the minority party in initiating action towards a §1001 prosecution. One would expect that the decision would be be vote within the committee concerned; or else a vote of all the Senate. The Senate Rules do not offer any obvious answer.

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