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Dead Constitution See other Dead Constitution Articles Title: Future Intimidation Is the Real Risk of the Jefferson Raid Let us stipulate one thing at the beginning: Whatever the other side of the story, if investigators are not lying and did find $90,000 in Rep. William Jefferson’s freezer, and if they do have the Louisiana Democrat on videotape saying what they say he said, then he is a scoundrel, plain and simple. But when it comes to the FBI raid on Jefferson’s office, that observation or reality is immaterial. What the FBI and Justice Department did is indeed a constitutional outrage, outrageous enough to have prompted the astonishing joint statement by Speaker Dennis Hastert (R-Ill.) and House Minority Leader Nancy Pelosi (D-Calif.). There are reasons--good and sound reasons--behind the Constitution’s Speech or Debate Clause and the broader sensitivity it embodies. The balance of power between the branches is delicate, and any overreach has to be checked. Immense damage or mischief can be done by a president, or an executive branch official or agency, trying to intimidate Congress as a whole, to damage or destroy a political enemy in Congress or to sidetrack a Congressional investigation. Try to imagine a Congress that has a real and robust sense of its own institutional identity. (I know, try hard.) That is, a Congress that would currently be doing an aggressive investigation about why the Justice Department dropped its own investigation into the approval by its lawyers of the National Security Agency wiretaps, that would ask who denied investigators security clearance and why, and what the circumstances were surrounding the department’s approval. One that might be doing additional investigations into the NSA’s use of phone records, into the department’s involvement in the Texas re-redistricting case, into its approval of the Georgia plan to require ID cards for voting and into other sensitive matters. Or one taking a hard look at the FBI’s near-billion-dollar, multiyear fiasco trying to update its computer systems. Now imagine an FBI or a Justice Department not very happy with the nature or direction of that kind of investigation. Were there not constitutional and historical boundaries around the ability of investigators and prosecutors to intrude on Congress and its Members, threats against lawmakers, seizure of their records or other methods could be used to sidetrack the investigations or intimidate the leaders. Of course, the same thing could be done with the IRS or other agencies. We have had enough difficult and emotional confrontations between presidents and Congresses to see how combustible these things can be, especially if a president or a major administration official is threatened with impeachment or political devastation. The Speech or Debate Clause does not preclude prosecution of criminal offenses; Members of Congress are not kings or queens. Plenty have been sent to the slammer before. Given the multiple investigations going on now, involving names such as Jack Abramoff, Mitchell Wade and Brent Wilkes, former Rep. Duke Cunningham (R-Calif.) and Jefferson, plenty more may end up in the slammer before long. If they did something to violate the public trust, I will be among the first to send them off with great fanfare. I applaud the Public Integrity Section of the Justice Department for its independence, assertiveness and indefatigability for going after Democrats and Republicans alike. But there are limits to what can and should be done in a case of this sort, and the weekend raid goes well beyond those limits. There is a reason why this kind of action has never--I repeat, never--been taken before. This conclusion seemed so open-and-shut to me that I might not have written about it if it weren’t for the editorials in The New York Times and The Washington Post pooh-poohing the action. The Post said it was not a big deal, even while saying that the Justice Department did not act “perfectly.” But in their description of that imperfect behavior, the Post made clear why this is so outrageous. The editorial reads, “It would have been preferable to find some way to consult with Congressional leaders before the search. If that wasn’t possible, it would have been preferable to seal the office and find a way to consult with House officials and have them present for the search. The ‘filter team’ may not have been the best way to protect Congressional prerogatives.” All true, and all pointing out just how over the line the behavior of the attorney general, the Justice Department and the FBI was in this case. It is clear from that Post editorial that there was no compelling urgency to break precedents that held for more than 200 years. Going into the office the way they did was wrong; doing so with only executive branch officials to screen the materials and make sure that they did not fall within the purview of the Speech or Debate Clause--without anyone from Congress present--showed utter contempt for the Separation of Powers. It was always possible to seal the office, to call Congressional leaders beforehand, to work in a different fashion that was sensitive to the Constitution while ensuring that the evidence was secure. The Justice Department, for its own reasons--could it be to send a message to other Members of Congress that the corruption investigation will soon morph into something much bigger, perhaps to get the public more whipped up about Congressional miscreance--chose deliberately to use the most extreme approach. I would be the last to argue that lawmakers have some kind of unlimited immunity; in fact, I yield to no one in my outrage about the behavior of many Members, staffers and others over the past several years, and my hope that they get the justice they deserve. No papers or offices are sacrosanct. To pick the limiting case, if a murder were committed in a Congressional office, it would not be immune from entry or search. On many occasions, Congressional papers have been subpoenaed and used in criminal investigations and trials. But there is a right way and a wrong way to move toward justice, and this was the wrong way. The president’s decision to seal for 45 days everything taken from the office is a good step, whether he did so to mollify an angry Speaker or because he was acknowledging that the DOJ overstepped. But this issue will not go away, especially with the explosive leak to ABC News suggesting that the Speaker might himself be worried about his own status in the ongoing investigations into Abramoff. That leak itself is a troubling sign of the kind of intimidation that undergirded the fears of the framers who enshrined the Speech or Debate Clause in the first place. I have no idea how widely the net will be cast in Congress, though the actions of prosecutors suggest that it might be expansive indeed. But the Speaker did not need any fear of his own fate to react the way he did to the Jefferson raid. I am glad he did, and glad he took his own unprecedented step, joining with Minority Leader Pelosi to stand up for Congress.
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Here's Kate O'Beirne's comments on the Jefferson raid from today's NRO "Corner" blog: While it is true that lots of his Republican colleagues were unhappy with the Speaker’s loud objections to the execution of a search warrant on Rep. “Freezer” Jefferson’s office, their discomfort shouldn’t be dispositive of the merits of those objections. The fastest way to clear a meeting of the GOP caucus is to ask who among them is willing to master the seemingly dry details of a constitutional separation of powers dispute in order to make an argument with terrible p.r. While his initial objection was overly broad and seemed to assert that there was a constitutional prohibition on any search of a congressional office for any material for any reason, that is not his position. He allows that it is constitutionally permissible if it is conducted with a proper regard for congress’ privileged documents and the separation of powers. Given how and why this search was conducted, I think he has a legitimate beef here. Prosecutors have to seek evidence in accord with the First, Fourth, Fifth and Sixth amendments—and with Article I of the Constitution. Rifling through every document in a congressman’s office, including clearly privileged material, is arguably not in accord with constitutional protections designed in part to prevent intimidation of the legislative branch by the executive branch. Speaking of intimidation, let’s not forget that someone at DOJ falsely told ABC that Hastert “is under investigation by the FBI” in connection with the Abramoff scandal immediately after he objected to the FBI search. It was a neat reminder of why Congress might not want people capable of that kind of political payback rummaging through their offices. The search did break 219 years of precedent. Why couldn’t an accommodation be reached that would permit DOJ to get the documents they sought? Because no accommodation was attempted. Had DOJ exhausted all other options for getting the documents it had subpoenaed? Unclear, but DOJ did tell the Speaker’s office that the search was necessary because the department “was tired of waiting.” Any fear that crucial documents would be destroyed (i.e. documents apparently critical to add to the direct testimony of a former Jefferson aide, the bribe delivery they have on tape, and the marked bills found in Jefferson’s freezer)? No. Copies of the subpoenaed documents that were the subject of the search warrant are in the House counsel’s safe. The fact that DOJ has a right to execute a search warrant on a congressional office doesn’t mean it should have been done in this case, in this manner. Should a constitutional challenge be litigated, the Jefferson case could be delayed for years. The president has had to intervene. He too has been intimidated by DOJ officials who leaked that they were ready to resign if all the material seized (including the office’s hard drives) was returned to the House. Hastert’s case is not easy to make, as I learned when I attempted to briefly this past weekend. But I’d think less of a politican who is willing to abandon a principle he believes is worth defending because it’s too awkward or complicated.
The Moving Finger writes; and having writ, Hmmmm, the significance of the way they went about it is lost by most in the corruption they found.
No nation could preserve its freedom in the midst of continual warfare. – James Madison
People are not seeing the forest for the trees. I'd rather Jefferson keep his freezer cash than Congress be intimidated out of its co-equal status. A little corruption is a small price to pay for constitutional government. As far as I'm concerned, I want to see the "Watergate Congress of 1974" elected this November---and put on steroids---to go after the Executive Branch. Let Congress create its own "Congressional Bureau of Investigation" to go raid the White House. I want to see a battle royal between the two branches of government next year. Maybe that'll help put the brakes on this criminal White House.
The Moving Finger writes; and having writ, |
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