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

Answers to your questions about the news.
March 6 2007 5:50 PM

Congressional Telephone Etiquette

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

Download the MP3 audio version of this story here, or sign up for The Explainer's free daily podcast on iTunes.

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. 

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.


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.

Got a question about today's news? Ask the Explainer.



The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

Does Your Child Have “Sluggish Cognitive Tempo”? Or Is That Just a Disorder Made Up to Scare You?

The First Case of Ebola in America Has Been Diagnosed in Dallas

Why Indians in America Are Mad for India’s New Prime Minister

Damned Spot

Now Stare. Don’t Stop.

The perfect political wife’s loving gaze in campaign ads.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

The GOP Senate Candidate in Iowa Doesn’t Want Voters to Know Just How Conservative She Really Is

Parents, Get Your Teenage Daughters the IUD

The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  News & Politics
Sept. 30 2014 5:19 PM Social Outcasts Republican candidates are retreating from debates on abortion, gay marriage, and contraception.
Building a Better Workplace
Sept. 30 2014 1:16 PM You Deserve a Pre-cation The smartest job perk you’ve never heard of.
Sept. 30 2014 1:48 PM Thrashed Florida State’s new president is underqualified and mistrusted. But here’s how he can turn it around.
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Sept. 30 2014 3:21 PM Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
Brow Beat
Sept. 30 2014 4:45 PM Steven Soderbergh Is Doing Some Next-Level Work on The Knick
Future Tense
Sept. 30 2014 6:43 PM Windows 8 Was So Bad That Microsoft Is Skipping Windows 9
  Health & Science
Medical Examiner
Sept. 30 2014 6:44 PM Ebola Was Already Here How the United States contains deadly hemorrhagic fevers.
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.