A Question of Ethics

Communications With Prosecutors Carry Risks

March 19, 2007

Q: 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?

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.

© Copyright 2007, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.


A Question of Ethics

Domestic Partners and Travel Reimbursement

March 5, 2007

Q: I am a senior House staff member whose job responsibilities require frequent trips to meetings and conferences around the country. Because the travel expenses can quickly add up, those of us who take such trips typically seek and obtain reimbursement from the event sponsors. It is also not uncommon for many of my co-workers to bring their spouses on these trips, in which case the staff members obtain reimbursement for the spouse’s expenses as well. My understanding is that this is OK under the ethics rules. My question is whether the rules also allow reimbursement for the expenses of a travel companion to whom I am not legally married. Specifically, I am gay and have lived with my partner for 12 years. We live in Washington, D.C., and are registered as domestic partners with the D.C. Department of Health. Because of the frequency of my travel, I would like my partner to accompany me to some of the events, but we can’t afford to pay for him to do so. Do the rules allow me to obtain reimbursement for his expenses from the events’ sponsors?

A: The House ethics provisions governing travel expenses appear in House Rule 25. Under those provisions, you may obtain reimbursement from certain private sources for necessary transportation, lodging and related expenses for travel to events in connection with duties of an officeholder. Let’s assume here that the events for which you will be seeking reimbursement qualify and that the sources of reimbursement are allowable under the rules. That would leave only the question that you have raised: whether your partner’s expenses are “necessary” under the rule.

Prior to 2005, the scope of “necessary” expenses under the rule included, among other things, “travel expenses incurred on behalf of either the spouse or a child.” Ethics committee guidance at that time stated that because reimbursement was not allowed for any individual other than a spouse or child, the committee would not approve reimbursement for other relatives or fiances.

In 2005, the House changed the definition of necessary expenses from those incurred by a spouse or a child to those incurred by a “relative.” This new definition remains in place today. Therefore, under the current rule, your question comes down to whether your partner qualifies as a relative.

Unfortunately, the rule does not define relative in this context. Moreover, the ethics committee has not published a definition or relevant guidance. In fact, the guidance regarding travel companions in the Gift and Travel Booklet on the committee’s Web site uses the former language of the rule — spouse or child — not the current language, relative.

In the absence of a formal definition, you do have an argument that your domestic partner qualifies as a relative. In D.C., legally registered domestic partners are afforded many of the same legal rights afforded to married couples, including, for example, health insurance, testimonial privileges, alimony and child support. Therefore, you could argue that domestic partners should qualify as “relatives.”

However, the ethics committee is not necessarily bound by the D.C. registration law. Moreover, there is language elsewhere in the rule, albeit in a different context, that might undermine your argument. That language appears in one of the exceptions to the rule’s general prohibition of all gifts to Members and staff. It states that the prohibition on gifts does not apply to gifts from a “relative as described in … the Ethics in Government Act.” If you turn to the definition in that act, you will find a list of 36 different relations that qualify as relatives, none of which would appear to include domestic partners. Therefore, while an argument exists that your domestic partner qualifies as a “relative” for purposes of travel reimbursement, there also is language that throws that argument into question.

Ultimately, of course, it is not for you or me to resolve this ambiguity. Rather, it is up to the ethics committee. If you wish to obtain reimbursement for your domestic partner’s expenses related to travel to a particular event, you should seek the approval of the committee before incurring the cost.

In fact, if you expect that your domestic partner may join you on a number of your work-related trips, you might even consider requesting that the ethics committee provide a general statement approving your domestic partner as an appropriate candidate for reimbursement. While the committee may be reluctant to provide general statements regarding the applicability of the ethics rules, there are circumstances where it has been willing to do so.

For example, upon written request, the committee will issue a general statement waiving the gift prohibition for wedding and baby gifts. It may be worth requesting a similar general statement here, approving reimbursement for the travel expenses of your domestic partner similar to the relatives who already are covered. Since such reimbursement would be unavailable without the committee’s approval, it can’t hurt to ask. The worst thing that could happen is that they say no.

© Copyright 2007, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.