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Ethics 'confidentiality': An explainer

Ask Rep. Doc Hastings (R-Wash.) about a potential congressional ethics matter, and he reaches into his wallet. No words are spoken at first, as he fumbles through the brown leather wallet. A business card for a staffer? A few dollars for a bribe to a reporter to just go away and stop asking sensitive questions?

Nope. Hastings pulls out and holds up a laminated yellow card with big, all-capitalized letters at the top that read: CONFIDENTIALITY RULE.

If that doesn't drive home the point, Hastings, the former House ethics chairman and now ranking member, will say one sentence: "I can't talk about anything that may come before the committee."

Welcome to the world of the House Committee on Standards of Official Conduct, the formal name for the chamber's ethics panel, and the Senate Ethics Committee. Bear with Capitol Briefing as we try to explain how the ethics process works on Capitol Hill. And it ain't pretty.

The Justice Department's firing of eight U.S. attorneys late last year, including seven on one day, has caused a political uproar in Washington. But the accusation that members of Congress sought to pressure some of those prosecutors potentially could overshadow the larger issue of the administration's motivation for firing the prosecutors. Already, the Senate Ethics Committee has signaled it is probing the phone call Sen. Pete Domenici (R-N.M.) made to U.S. Attorney David C. Iglesias of New Mexico two weeks before the November election -- and six weeks before Iglesias was fired.

Iglesias charged that he felt pressured when Domenici asked whether indictments in a local corruption case targeting Democrats would be filed "before November." Domenici -- who has hired a top defense attorney to handle the probe -- said he made the call but never mentioned "November" and never pressured Iglesias.

And the Domenici call came less than two weeks after Rep. Heather Wilson (R-N.M.) phoned Iglesias and specifically asked if he was sitting on any "sealed indictments" against local Albuquerque Democrats, which could result in an ethics inquiry into Wilson as well.

The ethics process is one of the murkiest there is in all of Congress, almost impossible to know what is or isn't happening. Members of the House and Senate committees sign confidentiality pledges such as the little yellow card that Hastings showed Capitol Briefing Wednesday evening. The chairwoman of the House ethics committee, Rep. Stephanie Tubbs Jones (D-Ohio), like Hastings, refused to say whether an inquiry had begun into Wilson's comments, while confessing to Capitol Briefing Wednesday that she had forgotten to bring along her little yellow laminated card.

The six-member Senate panel and 10-member House panel are evenly divided along party lines. The two committees have similar rules for the earliest stages of an inquiry, with the chair and ranking member weighing the initial evidence. If they decide the accusations are serious enough, then the issue would be brought to the full committee.

Here's where the rules of the two chambers differ. On the Senate side, if the issue is deemed serious, the preliminary inquiry would continue with all six Senators probing the issue. In the House, an investigative subcommittee would be formed, and the members of that subcommittee would come from a pool of members designated by Speaker Nancy Pelosi (D-Calif.) and Minority Leader John Boehner (R-Ohio). You don't have to be on House ethics in order to get drawn into a case.

Speaking out about the internal deliberations is itself a violation of ethics rules. These confidentiality rules help members of the committee in two ways -- both forbidding them from talking about the internal happenings of the panels, and also giving them a fall-back reason for why they can't comment on their deliberations. For now, the Domenici case is the most explosive since we know there is an actual probe.

The Senate panel used a statement to obliquely confirm that the probe was under way. It came an hour or so after a liberal watchdog group filed a complaint and publicly declared so, and then the committee released statement explaining that any time a legitimate complaint is filed, a preliminary inquiry begins.

Sens. Barbara Boxer (D-Calif.), chairwoman of ethics, and John Cornyn (R-Texas), the ranking member, could have continued to dodge the issue of whether any probe on Domenici was begun; instead, they OK'd the release of the back-door confirmation statement. Domenici's decision to hire a high-priced defense attorney was an even better confirmation of the ongoing probe.

At this point, the Domenici probe is in the earliest stages of a preliminary inquiry. The other four Senators on the panel have not been brought in to examine the matter. Once a preliminary inquiry is concluded, the matter could be dismissed in a private letter if no action is contemplated. That's what happened in late 2005 when the committee cleared Sen. Richard Shelby (R-Ala.) of any wrongdoing in an alleged leak of classified intelligence related to the 9/11 attacks. Shelby then chose to release the letter to the media to officially clear the air.

Or the committee can impose a light form of punishment, such as the time it "severely admonished" then-Sen. Robert Torricelli (D-N.J.) in 2002 for taking thousands of dollars worth of inappropriate gifts from a donor. Or the committee could then move into a full-fledged "adjudicative review", which is akin to there being an indictment in the inquiry stage and the case moves into a formal trial, or review. The last such adjudicative review was in the early 1990s of allegations of sexual misconduct by former Sen. Bob Packwood (R-Ore.), who retired rather than deal with the likelihood of expulsion from the chamber.

We're a long way from such an occurrence with regard to anyone involved in this current case.

By Paul Kane  |  March 8, 2007; 6:15 PM ET
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Looks like Rep. Sanchez was doing more than just brewing up subpoenas in her "politically toxic" cauldron. It now seems as though the freshman Representative was at the vanguard of a movement among lawmakers to investigate what may very well be a gross violation of prosecutorial independence, and most certainly is an egregious abuse of accomplished public servants. What a shame it is that this blog was too busy ridiculing Rep. Sanchez for doing her job that it failed to notice at the time what an important story this would turn out to be. Now that powerful Senators are busy looking into the facts, Capital Briefing is no longer bashing lawmakers who find the circumstances questionable, and are using the tools at their disposal to investigate. Rep. Sanchez is owed an apology, though I hardly imagine one to be forthcoming.
ps. to Mr. Green, Instead of initiating an email campaign against me, you're welcome to address my posts to this blog with your own. I stand by them and my right to post them. I also appreciate Mr. Kane's support very much. 'nough said...

Posted by: Patrick Huss | March 9, 2007 10:20 AM | Report abuse

Perhaps this is why Sen. Cornyn didn't show up for the Judiciary commitee hearing that you speculated in your previous posts.

Posted by: Michigan Mike | March 9, 2007 1:57 PM | Report abuse

Maybe Mr. Kane isn't aware that prosecutors who feel they are being pressured can make a complaint to the Justice Dept. Surprisingly none of them did! I would think Mr. Kane would know this and would inform his readers. Sadly, he chooses to keep them in the dark. I guess we all know why. Either that or he is more ignorant than I thought

Posted by: cajunkate | March 11, 2007 10:18 PM | Report abuse

The "Confidentiality rule is CYA for both the committees and the rest of Congress. The public is kept in the dark about the misbehavior of their representatives, the committee can decide to ignore or publicize, by the back door misbehaver of those they like or do not like, and our employees (Congress does work for us) decide what the boss is allowed to know

Posted by: James E. Fish | March 13, 2007 2:36 PM | Report abuse

Fire the prosecutor in S. Cal let the briber go unpunished, because Randy "Duke" cunninghan got caught, now fire the prosecutor that got him..befor the group that bribbed him are convicted. they were big "Ranger" fund raisers for Bush..don't you see the correlation here, noe Lam get fired?

Posted by: Rodney in Dallas | March 14, 2007 12:10 PM | Report abuse

America should wake up about how this country is 'really' run...Mafia-style, without the murders. Local goverment and state government is run the same way. It's acircular event whenever you want to file a serious complaint againt people's behavior. I don't mean nick-picking behavior, I mean behavior that is corrupt. You could go to any means of authority, and your complaint will sit there in the "round file" and you could call until you are blue in the face, and your call for justice will just be ignored. This type of behavior is not a 'one-time, unusual thing' as the professional scholars are trying to insist. How would they have a clue on what goes on in the real world when they sit there making big bucks while your average citizen is not making ends meet and has no one to fight for them as the ABA would have people believe? When there are complaints filed....government officials do nothing. There is no justice! It's all pretentious words on paper. It's a 'Circular Event'. From the local mayor's office, to the police dept, to the Health Dept, etc. I have seen it all. Payoffs, favors to keep thier mouths shut. Nothing is done even if you call a Washington office. Justice no more! Check out, There are retired judges who write in, lawyers, many people in authority who agree that the way the courts are run is awful.

Posted by: Denise L. Perrault | March 15, 2007 3:45 AM | Report abuse

Posted by: replica rolex | March 22, 2007 9:50 AM | Report abuse

If a Senator is Packing Wood, or Bush's Jack is abraming Off, who cares. America should wake up about how this country is really run...Mafia-style, with the murders, as Boulis learned. In Florida, local goverment and state government is run the same way. It's a circular event whenever you want to file a serious complaint. You could go to any level of authority and your complaint will sit there ignored, or worse, much worse. Whistleblower retaliation, mafia-style. There is no justice.

Posted by: N. Berg | March 22, 2007 8:11 PM | Report abuse

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