Posted March 8, 2007 by J. Gerald Hebert

Politicians Pressuring Prosecutors: What Role for Ethics?

Earlier this week, Bob Bauer opined on a New York Times editorial and public statements made by the Campaign Legal Center which have urged Congress to create an Office of Public Integrity.  The Times piece and the Legal Center statements have urged the creation of such an office to bring about an independent process for conducting investigations of Senators and House Members who allegedly violate the ethical rules of the Senate or House.  In his criticism of this suggestion, Mr. Bauer says that because there has already been a political response and a legal response to recent ethical lapses, he wonders what could be accomplished by the creation of an Office of Public Integrity.  To put it in Mr. Bauer’s own words, he writes that the voters in the last election weighed in, and the “Republicans lost control of the House (and Senate) at least in part because their ethics did not pass muster.”  Mr. Bauer notes that such an election result “was the political response[.]”  He then adds that “the criminal justice system, quite active on this front recently, generated a legal response.”  He then poses this question:  What then does the NY Times and the CLC want from the House ethics committee?

First, it is true that the Congressional ethical lapses were a driving force that produced the political result Mr. Bauer cites.  Sometimes these ethical lapses went so far that they constituted federal crimes and for that, there have been two Members of Congress indicted and convicted (Reps. Cunningham [CA] and Ney [OH]).  As an aside, I question the glacial pace of the DOJ investigations and prosecutions of other Members and cases implicated in the Abramoff scandal, but I leave those comments for another day. 

Mr. Bauer’s position is essentially that these two responses, one political and one judicial, are the only appropriate ones when Members of the Senate or House engage in unethical conduct.  But the simple truth of the matter is that there is a difference between violating the rules of the Senate or House on the one hand and committing a federal crime on the other.  Violations of ethics rules are different from violations of federal criminal statutes and the consequences of each vary even more.  When Mr. Bauer cites examples of prosecutions brought by DOJ against Members of Congress as a reason why we don’t need an independent ethics office, he really answers the wrong question.  Of course, the legal process is the appropriate forum to deal with alleged violations of federal law.  But federal prosecutors don’t indict Members of Congress for violating Senate or House ethics rules.  They indict them because there is reasonable cause to believe they have committed a crime.  Nevertheless, our society has higher expectations for Members of Congress than simply refraining from committing crimes—which is precisely why Congress has enacted its own ethics rules.  And these ethics rules governing conduct of Members are supposed to be enforced by the House and Senate Ethics Committees.  It is the failure of those Committees in recent years to function effectively that drives the Campaign Legal Center to call for the establishment of an Office of Public Integrity. 

Let’s look at the emerging scandal involving Senator Pete Domenici (R-NM) and Rep. Heather Wilson (R-NM).  Senator Domenici contacted an U.S. Attorney in October 2006 about a well publicized and pending corruption investigation of Democrats in New Mexico.  The Senator asked if there would be any indictments of Democrats before the November elections.  The Senator called the prosecutor at his home in the evening, and when the Senator was told that the investigation was ongoing and would extend beyond the November elections, the Senator said “I am sorry to hear that and hung up” according to the federal prosecutor’s testimony yesterday.  The prosecutor testified further that he felt he was being “leaned on” and “pressured” by this call.  There is little doubt such conduct by Senator Domenici violated the admonition in the Senate Ethics Manual, that “[t]he 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.”  The ethics rules in the Senate also make clear that Senators are not to communicate with a law enforcement agency regarding any ongoing enforcement or investigative matter.  And of course there are the general ethics rules, applicable in both the Senate and House.  Senator Domenici has apologized for his actions, of course, but most people do offer up a mea culpa once caught.

For her part, Republican Congresswoman Heather Wilson also placed a call to the same federal prosecutor about the same investigation a few weeks earlier.  Her call also seems to be in plain violation of House ethics rules, which bar a Member (or employee of the House) from making off the record comments to federal officials considering an ongoing criminal matter and also prohibit Members or House employees from “exert[ing] undue or improper pressure on agency officials[.]”  Of course, Congresswoman Wilson, like Senator Domenici, has issued a public statement saying she did not try to pressure the federal prosecutor.  But the fact is that there is inherent pressure in a Senator or Member of Congress calling a prosecutor about a pending criminal investigation, particularly on a case that involves partisan issues, as this one did.   

How could Congresswoman Wilson not feel like her call would be taken by the prosecutor as putting pressure on him?  After all, she was in the midst of a very tight re-election race.  She also, according to his testimony yesterday, expressed dismay when the prosecutor informed her that he would not discuss sealed indictments with her.  And of course, now we have the Congresswoman claiming in her public statement that she contacted the prosecutor because a constituent alleged that the federal prosecutor was dragging his feet and she says she told the federal prosecutor this when she called him.  He has denied that under oath, which makes me wonder if the Congresswoman will identify which of her constituents made these allegations—Senator Domenici, perhaps?

While all of this still evolving scandal is troubling enough, it is not at all clear yet that the calls placed by Senator Domenici and Congresswoman Wilson, by themselves, constitute a federal crime.  But they do warrant an investigation and appropriate sanctions of Senator Domenici and Congresswoman Wilson for taking actions that reflect poorly on the Senate and House. 

Yesterday’s spectacle of the hearing in the Senate Judiciary Committee surrounding the events involving the dismissal of United States Attorneys was illuminating in several respects.  Democratic Members of the Committee (Senators Schumer [NY], Leahy [VT], Feinstein [CA] and Whitehouse [RI]), rightfully elicited testimony and expressed concerns about Senator Domenici and Congressman Heather Wilson’s calls to the federal prosecutor about a pending criminal investigation.  It seems doubtful that any one of these senators will file an ethics complaint with the Senate Ethics Committee over this matter.  Republican Members of the Senate Judiciary Committee yesterday, such as Senators Specter (PA), Sessions (AL), and Graham (SC), used their time to elicit testimony that either justified the dismissal of federal prosecutors in general or attempted to do damage control for Senator Domenici and Congresswoman Wilson’s actions.  Again, conduct perfectly predictable in today’s politically charged climate.  And there is no doubt that even if they could bring themselves to conclude that what Senator Domenici did raises ethical problems, they will not ask the Senate Ethics office to investigate. 

Also predictable, today we see at least one leading Democratic Member of the House (Majority Leader Steny Hoyer [MD]) saying that while he believes the House Ethics Committee should investigate Rep. Wilson’s conduct in this matter, he would not be filing an ethics complaint against her.  It would appear to me that Members of Senate and House just don’t have the stomachs to hold each other accountable when ethical lapses are uncovered.  And this goes for both sides of the political aisle.  Instead of driving at the facts wherever they may lead, they immediately go into attack mode or political damage control mode, whichever one they feel is necessary.

So those who question whether the current investigative process for possible ethics violations is an effective, independent one in either the Senate or the House need look no further than this most recent scandal to get an answer.  An investigation is credible only if it is conducted in a fair, unbiased manner.  Sitting Members of the Senate and the House who serve on the ethics committees are like judges.  Judges don’t conduct investigations.  They receive evidence and make a decision based on facts gleaned from a fair and impartial adversary process.  An Office of Public Integrity to conduct such investigations and make recommendations to the judges (the Members) is just the medicine needed to cure the seriously ill ethics process.   

Nor is it an adequate response to ethics rules violations that voters have sometimes expressed themselves in the recent elections by turning out the ethically challenged officeholders.  To be sure, ethical lapses and the culture of corruption in Washington undoubtedly played a role in the decision of some voters to turn Congress over to the control of the Democrats and to defeat some Members of Congress.  At the same time, voters re-elected a number of Members who, at a minimum, appear to have violated ethical rules.  Democratic Congressman William Jefferson (LA) and Republican Congressman Robert Doolittle (CA) are two examples that come to mind.  Voters cast ballots at the polls for or against candidates for a wide variety of reasons.  In the cases of Congressmen Jefferson and Doolittle, for example, voters may have chosen to re-elect them despite their publicly known ethical lapses based on their positions on other issues.  The point here is that while it is true that the election campaign provides voters with an opportunity to take out their frustration or anger against a Member of Congress who engages in conduct that appears unethical or even violative of the law, that should not be the exclusive forum for dealing with Members’ ethical lapses.  After all, the Constitution places the duty of the Senate and House members to regulate their own conduct and to discipline themselves.  So the election context is no more the exclusive forum for dealing with ethical violations than the criminal justice system should be.  Each of those settings allows for the political and legal process to run their course.  The ethics process is simply a third course, aimed at insuring that members conduct themselves in a way that does not bring disrepute to the Senate or House as an institution.

Nor is it accurate to say that the creation of an unelected staff in an Office of Public Integrity would be “less accountable” than Members of Congress.  In fact, investigators in an Office of Public Integrity, much like Inspector Generals, would be less likely to come under pressure than sitting Members of Congress.  There is no basis for believing that an Office of Public Integrity looking into an alleged violation of congressional ethics rules would be more likely to interfere with a pending DOJ criminal investigation than if the Members of Congress undertook the investigation themselves.  In fact, an Office of Public Integrity would presumably be less susceptible to the political goals and pressures than the Members themselves.  Let’s face reality.  Senator Domenici and Representative Wilson contacted the federal prosecutor because they hoped their calls would lead to pre-election indictments of New Mexico Democrats.  Does anyone really think that professional staffers in an Office of Public Integrity would make such calls? 

The handling of the complaint against Tom DeLay (R-TX) by the then Republican-controlled House Ethics Committee is another good example of why an Office of Public Integrity makes sense: the Democratic Member of Congress who filed the complaint against Mr. DeLay got censured and Mr. DeLay was given a slap on the wrist (perhaps a pat on the wrist would be a more appropriate characterization of his punishment) for his abuse of power.  Rep. Joel Hefley (R-CO) the ethics committee Chairman at the time was stripped of his gavel as punishment for issuing even that slap on the wrist to Mr. DeLay.  It’s hard to imagine such an outcome if the investigation of Mr. DeLay had been undertaken by an independent Office of Public Integrity.  In any event, under the Legal Center’s proposal, the ethics committees should continue to be responsible for determining if ethics rules have been violated and what, if any, sanctions should be imposed or recommended.  But the requirement that a public report be issued on the disposition of all cases by the ethics committee will go a long way to making sure that recommendations of discipline for ethical violations will not be “deep-sixed” based on partisan concerns. 

It’s simple. We need a new nonpartisan, professional ethics enforcement entity to address the failure of the Congressional ethics committees to properly enforce the rules.  The process of conducting investigations must be an independent one, free of the partisanship that drives nearly every decision on Capitol Hill, especially when the decision involves the conduct of a Member.