Before the Trump administration finally acknowledged the true threat posed by the coronavirus known as COVID-19 to America’s health and well-being and before the stock market began to crash at the end of February, Sen. Richard Burr, R-N.C., was publicly downplaying the gravity of the threat. “Thankfully, the United States today is better prepared than ever before to face emerging public health threats, like the coronavirus, in large part due to the work of the Senate Health Committee, Congress, and the Trump Administration,” Burr assured Americans in a Fox News op-ed co-authored with Sen. Lamar Alexander, R-Tenn.
But while Burr was telling us not to worry, the powerful chairman of the Senate Intelligence Committee told a very different story to a gathering of dues-paying members of the Tar Heel Circle, a private club of business leaders and organizations. The Tar Heel Circle sponsored a luncheon on Feb. 27 with Burr as its keynote speaker. Unlike in his public appearances, Burr’s message was dire. Fifteen days before the Trump administration restricted European travel, Burr warned the audience against European travel. Sixteen days before North Carolina closed its schools, Burr warned the group closures were likely. Burr said the military might get involved, using military resources for hospitals. Burr reiterated that this was likely going to become a pandemic.
Burr’s warnings were reflected in his personal behavior as well. In a single day on Feb. 13, he dumped his stock portfolio in 33 separate transactions, unloading close to $1.7 million of stock holdings in hotels and other industries, a little more than a week before those same stock values collapsed.
Turns out that Burr wasn’t the only senator bailing out of the stock market just in the nick of time. Sen. Kelly Loeffler, R-Ga., also sold off substantial stock holdings after a closed Jan. 24 briefing with health and intelligence officials. Loeffler denies any wrongdoing. (Sens. James Inhofe, R-Okla. and Diane Feinstein, D-Calif. also traded in the stock market at this time but there is no indication that they participated in confidential briefings on the COVID-19 pandemic.)
These senators saved themselves a fortune. Not so the American public, which has watched our retirement investments fall off a cliff as we wait to see if government market interventions will give us relief.
The hypocrisy of members of Congress downplaying the seriousness of the pandemic in public, but cashing in on the stock market in private, is indeed troubling in itself. But is it illegal?
In 2012, following an embarrassing televised expose by “60 Minutes” of members of Congress using insider knowledge to cash in on the stock market, Congress reluctantly passed the Stock Act which made congressional insider trading illegal for the very first time. The Stock Act also set up a disclosure system to monitor compliance with the law. Members of Congress must post on the Internet all of their stock transactions within 45 days.
As chairman of the Senate Intelligence Committee, Burr is in an ideal position to receive top-level, non-public information about very real threats to national security and the economy — including any threats posed by the burgeoning pandemic. In a statement, Burr claims that he was basing his investment decisions on publicly available information — specifically, CNBC reporting. But how to justify these claims with the disparities between his public and private statements?
If Burr did dump his stocks based on what he considered reliable inside information gleaned from his perch as committee chairman, that should constitute congressional insider trading and a violation of the Stock Act. If other senators similarly knowingly saved their own fortunes based on nonpublic information gathered at the congressional briefing, that too would constitute congressional insider trading.
Getting to the root of this scandal and determining whether these senators illegally traded on non-public material information now requires an official investigation by an enforcement agency with subpoena authority.
Burr has called on the Senate ethics committee to conduct an investigation. But unlike the House ethics process that relies largely on an independent agency watchdog, the Office of Congressional Ethics (OCE) to conduct investigations and issue public reports of its findings, the Senate ethics committee is run by Senate colleague and operates largely in secret.
And it is questionable whether federal prosecutors working for Attorney General William Barr would take this kind of case on. For one thing. Barr has shown a reluctance to do anything that would anger his boss, President Donald Trump. But for another, insider trading cases are very hard to prove under normal circumstances, but even harder when members of Congress claim immunity from prosecution under the Constitution’s speech or debate clause. Former Rep. Chris Collins, R-N.Y., for example, delayed for months his eventual conviction for insider trading, claiming that the Constitution protects members of Congress from being arrested or prosecuted for doing things as legislators. It is a common defense, with mixed results.
Whether or not Burr is prosecuted, he should resign. A chorus of critics have already said the same, from Rep. Alexandria Ocasio-Cortez to Fox News host Tucker Carlson. And this entire scandal also highlights several critical reforms that should be taken to strengthen the Stock Act.
First, Congress should pass the Political Intelligence Transparency Act, requiring Wall Street operatives and business leaders who seek political intelligence directly from members of Congress, like the Tar Heel Circle, to register as political intelligence agents and disclose their activities. Had it not been for the news leak of Burr’s luncheon, this whole scandal would have gone entirely unnoticed.
Second, the original Stock Act set up a disclosure system that was searchable, sortable and downloadable; One could simply search for all members who traded stocks in the last 30 days. No longer — that system was stripped from the bill in 2013. Now one must peruse through the disclosure records of each and every individual member to see who recently dumped their stocks, which begs the question of what has happened on the House side that we can’t see.
Finally, the Senate ethics process should follow the lead of the House and become more transparent. An independent agency like OCE should be established to facilitate the investigative powers of the Senate ethics committee, opening up the black box of Senate ethics and assuring the public that ethics is taken seriously by this chamber as well.