It appears that certain members of Congress are forgetting that the laws apply to them -- and are willing to make illegitimate use of the Constitution to harrass members of the other two co-equal branches of government for doing their constiutionally mandated duty in the William Jefferson case.

Let's start with Rep. Darrell Issa.

One lawmaker on the Judiciary Committee said GonzalesÂ’ refusal to explain why he authorized the search may be grounds for impeachment by Congress.

“All options have to be left open,” Rep. Darrell Issa, R-Calif., told reporters after the hearing. Gonzales must “explain to our satisfaction how this is not going to happen again or how it was somehow justified.”

Issa said at the hearing that Congress has the power to impeach Gonzales and U.S. District Judge Thomas F. Hogan, who issued the search warrant. He said that if Sensenbrenner had raised the impeachment possibility, “more members would quickly be here.”

So, Darrell, let's look at this closely. The Constitution requires that an individual be guilty of high crimes and misdemeanors to merit impeachment and removal from office. Where is that standard met?

Does the issuance of a valid search warrant, pursuant to the Fourth Amendment of the Constitution, constitute a high crime or misdemeanor? If not, then there is no basis for impeaching Judge Hogan.

Furthermore, doing so would be, to borrow the words of Speaker Hastert, "in violation of the Constitutional principle of Separation of Powers. . . and the practice of the last 219 years." Even if one accepts the argument that the issuance of the warrant was wrong (and I do not), it has never been the practice that judges are impeached and removed because Congress disagrees with their official actions or decisions. John Marshall was not impeached after Marbury v. Madison, despite near universal opposition by Congress. Roger Taney was not impeached for the horrendous decision in the Dred Scot case, even though it led the United States into the Civil War. For all the talk of impeaching Earl Warren and other members of the Warren Court, no reasonable individual took such calls seriously or saw them as more than grandstanding. Harry Blackmun and William Brennan remained on the Court despite the constitutional attrocity that is Roe v. Wade, and no justice was removed for the decisions in the Kelo case, Roper v. Simmons, or Lawrence v. Texas, all of which are clearly decided wrongly and are much more clearly in opposition to the text of the Constitution. No lower court judge has ever been removed for a wrongly decided case or a warrant later found to be based upon incorrect principles -- why start with this one, unless it is to intimidate the Judicial Branch and inhibit it from the full and free exercise of its constitutionally derived powers -- in other words, to tamper with the separation of powers?

And as for the impeachment of Attorney General Gonzales, I again ask for a constitutioanl basis for such actions? Is the request for a warrant after ten months of stone-walling by Congressman Jefferson truly a high crime or midemenaor? After all, let's consider the situation.

The videotaped $100,000 bribery happened in July 2005—fully ten months ago.

Of that cash, $90,000 was seized from Jefferson's freezer on August 3, 2005. (And as my Corner post last night noted, the Justice department revealed on Tuesday that there is evidence Jefferson tried to obstruct that search).

On the same day, August 3, 2005, the Justice Department served a grand-jury subpoena on Jefferson. It is reasonable to infer, since Justice got the search warrant for the residence at the same time, that Justice appreciated the significant difference between searching a congressman’s home and searching his congressional office—even though, in truth, a legitimate speech-and-debate claim could apply to either equally. Plainly, out of deference to Congress, Justice proceeded by subpoena as to evidentiary items in Jefferson’s office in hopes that it would be unnecessary to take the more provocative step of seeking a judicial search warrant.

Other subpoenas apparently followed in the late summer of 2005, to both Jefferson and his chief of staff. Speaker Hastert, according to a memorandum filed by the Justice department on Tuesday, was notified about the subpoenas by Jefferson on September 15, 2005, and again on November 18, 2005. The Justice department has been trying to get production on those subpoenas ever since—to no avail.

Meanwhile, in January 2006—five months ago—Brent Pfeffer, once a congressional aide of Jefferson’s, publicly pled guilty in federal court to bribing and conspiring to bribe Jefferson. While this does not seem to have stirred Congress, a federal judge just last week thought it was sufficiently serious to merit a sentence of eight years in federal prison.

And just a few weeks ago, in early May, Vernon Jackson, the president and CEO of the company at the heart of the bribery scheme, pled guilty to paying Jefferson $400,000 in bribes. He has yet to be sentenced (and, like Pfeffer, is said to be cooperating in the investigation).

Seems to me that there has been a great deal of deference shown to Jefferson as a member of the House of Representatives -- deference that would not be accorded to any citizen, and deference which is clearly not required by the Constitution. Why then impeach Gonzales, unless one wishes to contend that the ordinary function of the law and the Constitution does not apply to members of the Legislative Branch, and that diligent and even-handed enforcement of the law is therefore an impeachable offense. That would, of course, also intrude upon Executive Branch prerogatives under the Constitution -- and violate the doctrine of separation of powers.

As for Congressman James Sensenbrenner, who I usually respect, his hearings and proposals are clearly over the top.

The chairman, Representative F. James Sensenbrenner Jr., Republican of Wisconsin, called the search "profoundly disturbing."

Mr. Sensenbrenner also said he planned a legislative response to the search on May 20 of the office of Representative William J. Jefferson, Democrat of Louisiana. The bill would be patterned on a law limiting searches of news media offices.

"I think this law will help the Justice Department get it right next time because they didn't get it right this time," Mr. Sensenbrenner said as his committee heard from legal experts and a former lawmaker.

Excuse me, sir, but they did get it right -- they applied to a federal judge for a warrant and executed teh warrant as they would any other. They even set up special procedures, monitored by the court, for ensuring that no privileged material was used in the investigation. In short, the joint effort of the two other constitutional branches of government have determined that the search was within the scope of the Constitution, and any legislation would be a gross violation of constitutional principle of the separation of powers, which you claim to be concerned about.

Oh, and there is this little matter.

The House intends to summon Attorney General Alberto R. Gonzales and the director of the Federal Bureau of Investigation, Robert S. Mueller III, before the Judiciary Committee to justify its search of a Congressional office, the panel chairman said Tuesday.

By all means, subpoena them. I'm sure they will be more than willing to appear -- in 10 months, which is the amount of time that Congresman Jefferson has refused to turn over subpoenaed documents to the FBI. After all, we wouldn't want to make it appear that you folks believe that the legislative branch is tampering witht he separation of powers or trying to impose its supremacy on a co-equal branch of government, would we?

Ultimately, this mess is headed for the Supreme Court because members of Congress are seeking to establish a principle that does not exist anywhere in the Constitution -- the freedom from subpoena, search warrants, and criminal investigation.

And when they lose, with these congresscritters start mouthing off about impeaching Supreme Court justices for decisions they dislike -- again, upsetting the Constitutional principle of separation of powers and overturning 219 years of practice?

Posted by: Greg at 06:15 PM | No Comments | Add Comment
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