N.M. Calls May Spark Probes
A pair of Judiciary panel hearings today featuring testimony from at least four U.S. attorneys who were summarily fired by the Justice Department could spark the first major ethics probes of the 110th Congress.
The star witness at this morning’s Senate Judiciary hearing and this afternoon’s House Judiciary session will be ousted U.S. Attorney for New Mexico David Iglesias, who has told various media outlets that two New Mexico lawmakers contacted him in mid-October 2006 to inquire about the pace of an ongoing corruption probe of local Democrats.
Sen. Pete Domenici (R-N.M.) already has admitted to, and apologized for, making a phone call to Iglesias in mid-October. But Domenici denied doing anything improper, saying in a statement over the weekend that “at no time in that conversation … did I ever tell [Iglesias] what course of action I thought he should take on any legal matter.”
Various media reports have singled out Rep. Heather Wilson (R-N.M.) as the other lawmaker who contacted Iglesias to ask about the corruption probe. Her office did not return phone calls on Monday.
On Monday, ethics attorneys off Capitol Hill said that Domenici’s behavior involved seriously suspect activity and could result in Senate Ethics Committee action, a major investigation by the Justice Department or even an independent counsel.
“Having been in Washington for 35 years, I’m sure we’re headed to a full-blown obstruction investigation of some variety that will involve not only the Members of Congress but the Justice Department itself,” said Stan Brand, a former House general counsel who now works at Brand Law Group.
“This isn’t some rulemaking, this is serious stuff and I don’t know where it ends or what the outcome is, but it’s going to have to be investigated,” Brand added.
Senate Rule 43 states that: “Senate offices should refrain from intervening in such legal actions … until the matter has reached a resolution in the courts.”
Attorney Jan Baran of Wiley Rein, who has counseled GOP clients, said it is unclear if there was a violation of Senate Ethics rules, let alone any laws that would lead to a broader probe.
“It can be an issue with the Senate Ethics Committee as to whether he was properly inquiring about an ongoing investigation,” Baran said. “We just don’t have all the facts.”
Several attorneys said the situation was a rare one and drew comparisons to the “Keating Five” scandal in which lawmakers intervened with federal regulators on behalf of savings and loan operator Charles Keating.
“The ethics rules attempt to balance the job of a Senator representing constituents and making sure the government is responsive with the ethical consideration that they not intervene in investigative or other formal agency type proceedings,” Baran explained.
“The lines are not always clear,” he said.
But attorney Kenneth Gross of Skadden, Arps, Slate, Meagher & Flom said that both the timing — right before an election — and the nature of Domenici’s call were suspect.
“The more I look at this, the more troubling it is,” Gross said, a former associate general counsel at the Federal Election Commission. “It’s one thing if it’s a mere status request as opposed to one that carries with it pressure. And the nature of the proceeding, in this case a criminal prosecution, is among the most delicate for any type of inquiry.”
On Monday, the liberal group Citizens for Responsibility and Ethics in Washington wrote to the Senate Ethics Committee asking the panel to investigate Domenici’s behavior. The Senate Ethics panel can consider complaints from groups such as CREW when deciding whether to launch an investigation, while the House ethics committee does not allow complaints to be filed by outside groups.
A spokeswoman for Sen. Barbara Boxer (D-Calif.) — who is currently serving as chairwoman of the Senate Ethics Committee while Sen. Tim Johnson (D-S.D.) recuperates from brain surgery — did not return a call for comment.
If the Senate panel launched an investigation of Domenici or the House panel began a probe of Wilson, both committees would attempt to keep their activities secret.
Brand suggested any investigation would go beyond the scope of the ethics committees and directly expand into a criminal probe, which could not be managed by the Justice Department since it is involved in the allegations.
Justice Department officials have conceded that Domenici personally called Attorney General Alberto Gonzales on at least four occasions to complain about Iglesias. Those contacts occurred in September 2005, January and April 2006, and again in October 2006.
The Domenici revelations further fuel Democratic charges that there has been improper political interference by the Bush administration in judicial proceedings. They say at least seven U.S. attorneys were unfairly fired for political reasons and are set to be replaced with political cronies. The Justice Department maintains that the seven — with the exception of Bud Cummins III, the ex-U.S. attorney for Eastern Arkansas — were dismissed for “performance based” reasons.
“More than any other Justice Department officials, U.S. attorneys must be above reproach,” said Sen. Charles Schumer (D-N.Y.), who will chair today’s Senate Judiciary hearing. “Today’s revelations call into serious question whether they allowed such independence in this administration.”
Schumer also questioned the timing of the imminent departure from the Justice Department of Mike Battle, the director of the executive office of U.S. attorneys. The Justice Department released a statement Monday saying Battle’s departure, which he notified Justice of months ago, was “unrelated” to the U.S. attorneys controversy.
“This raises another question about a subject where there are already too many unanswered questions,” Schumer charged.
A Republican, Iglesias serves in the Navy Reserve and was the model for Tom Cruise’s character in the movie “A Few Good Men.”
Though he would not name the lawmakers who contacted him, Iglesias told The Associated Press last week that he “frankly felt violated” by the contacts. “They were very troubling phone calls,” he said.
The other prosecutors slated to testify today are Cummins, ex-San Diego Attorney Carol Lam, who secured the guilty plea of former Rep. Duke Cunningham (R-Calif.), and John McKay, the former U.S. attorney for the Western district of Washington.
Since their firings and the Congressional uproar, the U.S. attorneys have remained relatively silent about their treatment. In earlier testimony before the Senate Judiciary Committee, Deputy U.S. Attorney Paul McNulty claimed that the bulk of the firings were “performance related.”
One Democratic Senate aide said he expected the U.S. attorneys to speak “candidly” about their frustrations today.
The House Judiciary hearing today will consider legislation drafted by Rep. Howard Berman (D-Calif.) that would reverse an amendment to the USA PATRIOT Act that allows the U.S. attorney general to permanently appoint interim U.S. attorneys. The subcommittee on commercial and administrative law plans to meet this morning to consider subpoenaing two other fired U.S. attorneys: Daniel Bogden of Nevada and Paul Charlton of Arizona.
The Senate Judiciary Committee has already passed legislation to amend the USA PATRIOT Act and return that power to district courts until the Justice Department submits a name for Senate confirmation.