Reps. Neil Abercrombie (D-HI) and Jane Harman (D-CA) had a nasty surprise late last week when The Washington Post reported that Laura Flores, a former staffer who'd been busted for stealing $200,000 from her bosses' official accounts, was cooperating with the feds in an investigation of "whether members of Congress used phones, supplies and staff time for campaign purposes." The Post called it "an early-stage inquiry by the Justice Department's public integrity section." It isn't clear if the investigation is limited to, or even concentrated on, Harman and Abercrombie. Flores is getting a reduced sentence for her efforts.

Both Abercrombie and Harman have denied that there would be any reason for scrutiny. And there hasn't been a specific allegation that a Congressional staffer was paid to perform campaign activity. But the Post reported yesterday that both lawmakers had together managed to spend $2 million on their 2006 campaigns while spending only $5,000 of that on campaign workers. Both explain that by saying they used volunteers.

I asked Stan Brand, a veteran D.C. criminal defense and ethics lawyer and the former House general counsel, what he thought of the probe. He couldn't remember a prior example of the Justice Department going after lawmakers for using staffers for campaign work, but said there had been a number of prosecutions for having staffers work on a lawmakers' private business.

The problem for prosecutors, he said, is the vagueness of what would be an inappropriate activity outside a staffer's official duties. "So the courts have deferred in large measure to give the Congress some discretion in defining official duties. That's where the Justice Department has had difficult drawing that line itself." As a result, he said, prosecutors would need to "have a really clear cut and egregious case in this area to make a compelling prosecution."

Of course, this sort of thing is traditionally in the domain of the House ethics committee, but with the committee all but moribund, Brand said, the Department may be looking to "fill the vacuum." With the committee paralyzed, the Department might feel the need "to make a determination of whether something illegal has occurred here.... There's no basis for them to defer" to the committee.

The watchdog Citizens for Responsibility and Ethics in Washington has seized the opportunity to demand that the committee investigate the use of staffers. Whether that will result in any action... don't bet on it.