Wednesday, May 24, 2006

Above the law?

Congressman William Jefferson, D-LA, could be indicted by a grand jury in as soon as a month, and the initial evidence of bribery and corruption looks very, very bad. The FBI searched his office Saturday evening, starting around 7:30, but only because Jefferson repeatedly refused to turn over documents under subpoena.

Since then, Jefferson has found some strange bedfellows, as is the case with politics. House Speaker Dennis Hastert even went straight to President Bush to complains about the search. Why? Does he have something to hide too, or at the least is he trying to establish a principle so that other corrupt members of Congress won't have to worry about searches?

The warrant was properly obtained from a federal judge: it was supported by oath or affirmation, and based on persuasive information. Now, Jefferson has not been charged yet, let alone convicted. If anything, considering the immense probable cause behind the warrant, he should welcome the search to clear his name. I'm in no wise saying that people should meekly submit to searches, but there was considerable evidence here that elicits very good questions. So why are so many accusing the FBI of conducting an unconstitutional search?

Well, Jefferson's defenders, including Republicans, claim that the search violates the Constitution's "separation of powers." A Google News search of that phrase returns innumerable articles written by ignorant reporters, who fell for some prominent lawmakers' hogwash. Nowhere in the Constitution does the phrase "separation of powers" appear. The principle itself appears only in that Articles I, II and III clearly delineate powers between the three branches. Even so, the separation of powers is only that, a division of governmental authority between the three branches, with "checks and balances" so that one branch can keep the others in line. But separation of powers does not give the legislative branch immunity from the executive branch's power to enforce the law.

Some specifically point to the "Speech and Debate" clause, but here's what Article I, Section 6 says:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Is it no longer a federal felony for a public official to receive bribes? So this clause does not apply.

Furthermore, precedent is not on Jefferson's side. The U.S. Supreme Court decided in United States v. Brewster (1972) that bribery is not an act for which a member of Congress can claim immunity while Congress is in session. One of the things the Court held was:
2. The prosecution of appellee is not prohibited by the Speech or Debate Clause. Although that provision protects Members of Congress from inquiry into legislative acts or the motivation for performance of such acts, United States v. Johnson, 383 U.S. 169, 185, it does not protect all conduct relating to the legislative process. Since in this case prosecution of the bribery charges does not necessitate inquiry into legislative acts or motivation, the District Court erred in holding that the Speech or Debate Clause required dismissal of the indictment. Pp. 507-529.
Most fundamentally, if the executive branch cannot search a legislator's offices, despite having a valid warrant based on reasonable suspicion, then the legislative branch has set itself above the law. What do Jefferson, Hastert and the rest think the executive is supposed to do, continue "pretty please" requests?


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