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Communications With Prosecutors Carry Risks

As a Senate staffer, I have been closely following the Senate Judiciary Committee hearings regarding prosecutorial independence. I am generally very careful to remain in compliance with the ethics rules. So I have been especially interested in the testimony concerning communications between a current Senator and a federal prosecutor regarding the prosecutor’s ongoing investigation. I have read in newspaper articles that some ethics experts say that such communications violate the Senate ethics rules. This confused me, since I am not aware of any rules specifically prohibiting me from communicating with prosecutors regarding an ongoing investigation. Do such rules exist?

[IMGCAP(1)]A: Your confusion is understandable. You are right that there are no ethics rules specifically prohibiting such communications. However, you should certainly not regard this as a green light to contact prosecutors regarding pending investigations. To the contrary, such communications could subject you to serious ethical and legal risks.

One risk is an investigation by the Ethics Committee. The committee sometimes conducts investigations even in the absence of a rule directly on point. And, the committee frequently receives letters from watchdog groups requesting such investigations.

For example, in the case of Sen. Pete Domenici’s (R-N.M.) contacts with U.S. Attorney David Iglesias, Citizens for Responsibility and Ethics in Washington has requested that the Ethics Committee commence an investigation on the grounds that Domenici violated Senate Rule 43. CREW alleges that Domenici attempted to intervene in a pending legal action by attempting to influence a federal prosecutor’s conduct of an ongoing investigation. In support of its request, CREW cites language from the Senate ethics manual concerning Rule 43: “The general advice of the Ethics Committee concerning pending court actions is that Senate offices should refrain from intervening in such legal actions until the matter has reached a resolution in the courts.”

As the manual states, this advice is based on the general principle that the judicial system is the appropriate forum for the resolution of legal disputes and that the system should be allowed to function without outside interference. The “advice,” however, is not itself a prohibition.

In fact, it is unlikely that Rule 43 itself was ever intended to apply to Domenici’s alleged communications. This is evident from the Rule’s origins. The Senate adopted it as a direct result of the “Keating Five” matter, involving the relationships between five Senators and Charles Keating, a savings and loan executive. It was alleged that, in exchange for favors and campaign contributions from Keating, the five Senators pressured bank regulators to slow their investigation of Keating. The ethics committee conducted an investigation, focusing primarily upon whether the Senators based their decisions to intervene upon the fact that Keating had contributed to them.

Following the investigation, the Senate adopted Rule 43 to provide specific restrictions upon the criteria a Senator may consider in deciding whether to communicate with a government agency on behalf of a constituent. The rule states that the decision to provide such assistance to a constituent “may not be made on the basis of contributions or services … to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.” The rule itself says nothing at all about the propriety of communicating with federal prosecutors. So, on its face, and in light of its origins, it doesn’t seem to apply.

However, even if rule 43 does not apply to Domenici’s communications, this does not guarantee that the Ethics Committee will not investigate them. There are few formal restrictions governing the bases on which the Ethics Committee may initiate investigation, make its decisions or even issue sanctions. Moreover, in the ethics manual, the committee claims to have the broad authority to discipline Members for “any misconduct, including conduct which does not directly relate to official duties.” There have been occasions when the committee found conduct to be improper even when it did not violate a specific ethics rule.

But an ethics violation is hardly the most serious risk. Far more grave is the risk that such communications could result in criminal liability. Communications with a federal prosecutor might be viewed as obstruction of justice, a federal offense carrying punishments much more severe than the sanctions of the Ethics Committee.

Finally, there is the risk arising from people’s perception. When a Senator or staffer contacts a prosecutor regarding an ongoing investigation, even if their motives are entirely innocent, there is always the risk that someone else, including a prosecutor, will perceive them otherwise. Sen. Domenici has said that he never pressured Iglesias in any way. Iglesias testified that he did feel pressured. Whatever the case may be, the mere fact of a communication could create the appearance of impropriety. Therefore, the safest course is not to engage in such communications at all.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Readers should not treat his column as legal advice. Submit questions to Questions are not confidential and do not create any attorney-client relationship.

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