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Agency Intervention After the Domenici Case

          The Senate Ethics Committee has issued a “qualified admonishment” of Senator Pete Domenici for making a telephone call in October 2006 to David Iglesias, then the U.S. Attorney for the District of New Mexico.  Domenici called Iglesias to inquire about the timing of potential indictments in an ongoing federal grand jury probe of alleged public corruption.  This corruption investigation was, at the time, an issue in a hotly contested congressional race in the First Congressional District of New Mexico.   

            In its letter to Senator Domenici, the Committee noted that it found “no substantial evidence to determine that you attempted to improperly influence an ongoing investigation.”  Nonetheless, the Committee found that “you should have known that a federal prosecutor receiving such a telephone call, coupled with an approaching election which may have turned on or been influenced by the prosecutor’s actions in the corruption matter, created an appearance of impropriety that reflected unfavorably on the Senate.” 

            This may represent the first time that the Committee has ever disciplined a Member simply for a communication with an executive official or agency, and its reasoning could significantly increase the risk of ethics violations when a Senator or staffer intervenes with the executive branch.   

The only authority cited in support of the Committee’s conclusion is the “general guidance under Rule 43 to avoid communications with a federal agency on a matter in which it is ‘engaged in an on-going enforcement, investigative, or other quasi-judicial proceeding’ (Senate Ethics Manual, 2003 ed., page 179).” Rule 43 provides that Senators may contact executive officials or agencies on behalf of “petitioners” (i.e., constituents or other citizens who seek their assistance) for various purposes, including requesting information, urging “prompt consideration,” and “express[ing] judgments.” However, Rule 43 also provides that the “decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or other organizations in which the Member has a political, personal or financial interest.”

As Dennis Thompson points out in Ethics in Congress (1995), Rule 43 is almost entirely “devoted to saying what members may do. . . . The only conduct specifically proscribed or even deemed questionable is providing assistance on the basis of contributions or services.” Thus, it is not surprising that, as the Senate Ethics Manual specifically points out, “neither the Senate, nor the House, has to date, disciplined a Member solely because of that Member’s intervention with an executive agency.”

As for the snippet of guidance cited by the Committee, the full sentence states: “Notwithstanding these limitations respecting court interventions, the Committee has ruled communications with an agency with respect to a matter which may be the subject of litigation in court is, nevertheless, generally permitted, where the communication is with the agency (or its attorneys, e.g., the Department of Justice) and not directed at the court, where the agency is not engaged in an ongoing enforcement, investigative or other quasi-judicial proceeding with respect to the matter, and where the communication is based upon public policy considerations and is otherwise consistent with Rule 43.”

This sentence is not exactly a model of clarity, but it is far from apparent that it means, as the Committee now interprets it, that Senators must generally avoid communications with federal prosecutors or other officials with regard to investigative or enforcement activities. In the first place, the sentence, like Rule 43 itself, focuses on what is permitted, and does not directly address what is proscribed. Moreover, the sentence, like Rule 43 itself, is directed at providing Senators with guidance on what they may do on behalf of constituents (in fact, it appears in a chapter of the Ethics Manual entitled “Constituent Service”) or other petitioners. It is not obvious that it has any application to Senator Domenici’s call, which, as far as we know, was not made on behalf of anyone else. Certainly there is no allegation that Senator Domenici received any contributions or services related to making the call.

To the extent that the sentence quoted by the Committee contains an implicit proscription of contacts with federal agencies, it would seem to relate to the prior two paragraphs of the Ethics Manual, which caution Senators against ex parte communications to the court in legal proceedings or to agencies with regard to formal adjudications or other proceedings that must be conducted “based only upon a record developed during a trial-like hearing.” Indeed, the Committee’s own “Overview of the Senate Code of Conduct and Related Laws” summarizes its guidance in this area as “EX PARTE communications may be prohibited in some judicial and quasi-judicial proceedings.”

Domenici’s conversation with Iglesias was not a prohibited ex parte communication. Anyone is free to communicate with a federal prosecutor regarding a matter that is the subject of a federal grand jury investigation, although the prosecutor is not free to provide information regarding that investigation. Thus, although Domenici’s call certainly seems inadvisable (in part because Domenici was attempting to solicit information about the timing of indictments that Iglesias could not or should not have provided), it did not appear to violate any specific prohibition contained in either Rule 43 or the Ethics Manual.

As now interpreted by the Committee, however, any communication with an executive agency regarding an investigation or enforcement activity would seem to be suspect under the ethics rules. For example, suppose a Senator communicates with the Federal Trade Commission to urge it to institute, expand or expedite an investigation of the oil companies for price gouging. Such a communication (which would seem unexceptionable under current Senate norms) could be viewed as a violation of the Committee’s guidance on agency communications and thereby subject the offending Senator to discipline. This would particularly be the case if the Senator’s communication were explicitly or implicitly linked to a political consideration such as an upcoming election.

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