Why can't members of Congress talk to federal prosecutors by phone?

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March 6 2007 5:50 PM

Congressional Telephone Etiquette

Why it's rude for a lawmaker to call a prosecutor.

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Sen. Pete Domenici. Click image to expand.
Sen. Pete Domenici

This week, Sen. Pete Domenici, R-N.M., and Rep. Heather Wilson, R-N.M., both admitted that they had made private telephone calls to David Iglesias, one of eight U.S. attorneys allegedly ousted for political reasons in December. On March 5, the Citizens for Responsibility and Ethics in Washington filed a complaint with the Senate ethics committee against Domenici; the following day, they sent a letter to the House ethics committee about Wilson. What's so wrong about a lawmaker calling a prosecutor?

Torie Bosch Torie Bosch

Torie Bosch is the editor of Future Tense, a project of Slate, the New America Foundation, and Arizona State that looks at the implications of new technologies. Follow her on Twitter.

It's against the rules. The ethics manuals of both the House and the Senate include provisions to make sure that government employees—e.g., federal prosecutors—can act independently when they do their jobs, without interference or pressure from a higher-up. Domenici and Wilson are said to have contacted Iglesias for information regarding an ongoing political corruption case in New Mexico.  Depending on how you interpret the ethics code, this might qualify as a violation.

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Domenici seems to have violated Senate Rule 43, which is in Chapter 8 of the Senate Ethics Manual. This rule, adopted in 1992 in the aftermath of the Keating Five savings-and-loan scandal, mostly governs when senators are or aren't allowed to contact agencies on someone's behalf. For example, a senator shouldn't make contact with the Justice Department to interfere with a case against a major campaign donor. But the rule can also apply whenever a lawmaker dials up a government employee to get some information. Rule 43 says that these calls are OK as long as the employee isn't directly involved in an "on-going enforcement, investigative, or other quasi-judicial proceeding with respect to the matter." ( Quasi-judicial matters are cases that are investigated and decided on by administrative agencies outside of the court system.) It also advises that the Government in the Sunshine Act of 1976 forbids senators to use "oral or written communications made without proper notice to all parties and which are not on the public record" with agency employees in a decision-making capacity in a pending matter. Domenici's call, during which he asked Iglesias about a case under investigation and then allegedly hung up on him, would likely fall under this definition.

Rep. Heather Wilson. Click image to expand.
Rep. Heather Wilson

Wilson's contact with Iglesias could fall under Chapter 7 of the House Ethics Manual, which, like Rule 43, cites the Government in the Sunshine Act. Chapter 7, quoting a House report, notes that a "request for background information or a status report 'may in effect be an indirect or subtle effort to influence the substantive outcome of the proceedings' " and advises that members put all communications in writing and make them a part of the public record. Wilson does not appear to have made her call to Iglesias part of the public record. (The Senate's Rule 43 makes a similar note about status requests.)

If they're found to have committed ethics violations, Domenici and Wilson could receive private letters admonishing them for bad behavior, or they might get a public reprimand. In theory, they could also be asked to step down from office.

Bonus Explainer: Could there be an obstruction of justice charge in this story too? Sen. Arlen Specter, R-Pa., brought up the possibility during Tuesday's hearing, when some of the ousted attorneys said they felt that they had been threatened  against speaking to the press or voluntarily testifying before Congress. This probably wouldn't count as obstruction, though, since the former U.S. attorneys were not witnesses before Congress when the alleged threat was made, or involved in a judicial or administrative investigation.

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