At last -- a GOP leader willing to come out and state the obvious (updated) about the search of William Jefferson's office!

In a break with his counterparts in the House, the Senate's leader said today the FBI was within its right to search the office of a congressman under investigation in a bribery case.

"No House member, no senator, nobody in government should be above the law of the land, period," Senate Majority Leader Bill Frist said.

* * *

"I don't think it abused separation of powers," Frist said on "Fox News Sunday.

"I think there's allegations of criminal activity, and the American people need to have the law enforced."

Even Dick Durbin came close to stating a similar conclusion.

Illinois Sen. Dick Durbin, the No. 2 Democrat in the Senate, said there needs to be "hard look" at whether the FBI violated the Constitution. But he said the FBI has raided judge's chambers before, so there is precedent for crossing branches of government for searches.

He also said he wasn't sure the "speech and debate" protections in Article 1, Section 6 of the Constitution were violated, as some of have argued.

That section states that members of Congress "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."

"I'm not sure that you can stretch it to apply to this situation," Durbin said. "In the next several weeks, we ought to take a hard look at it. I'm not going to rule it in or out at this moment."

Yeah, he wants to keep it around as a possible election year issue if the focus groups indicate that it might make a difference in November -- but since he notes that law enforcement has historically used search warrants to search the offices of judges, he can't really make the case for a violation of separation of powers. -- and his words effectively concede that.

So it is time for the leadership of the House of Representatives to quit demagoguing this issue -- and for the Presidnet to rescind his sequestration of the evidence against Jefferson and end the obstruction of the investigation of this crooked congressman.

UPDATE: Looks like Wyoming Congresswoman Barbara Cubin has broken with House leadership on this matter.

“Nobody in this country is above the law, especially those elected to create our laws,” she said. “They should, if anything, be held to a higher standard. They should not expect their congressional offices to be treated as a safe haven to store incriminating documents or illegal products such as drugs or stolen goods."

"With all due respect to my colleagues, criticizing the executive and judicial branches of our government for fully investigating a member of Congress suspected of criminal wrongdoing sends the wrong message and reflects poorly upon all of Congress,” she added. “Alleged corruption and crimes in both the private and public sector must be fully investigated, and those found guilty must face a fitting punishment. Members of Congress are no exception.”

In an interview, Cubin also disagreed with the calls for the government to immediately return all documents.

"As long as the constituents’ privacy is protected, I think that they ought to be able to look at whatever evidence there is in his office that he may have broken the law,” she said.

She explained that the leadershipÂ’s protests could further erode the publicÂ’s already skeptical view of Congress.

“What isn’t acceptable is that there’s a perception out in the country that members of Congress think that they are above the law, because they’re not above the law,” she said. “I think for the most part they don’t believe they are either. But just the perception that that is so, is not acceptable.”

She added that lawmakers do need to protect constituentsÂ’ private communications with their offices.

“They ought to be assured their private information will be kept private, but to think that the authorities shouldn’t be able to go into our offices in the pursuit of an investigation of criminal wrongdoing, I think it just sets us apart, and we ought not to be set apart,” she added.

Cubin acknowledged the significance of the fact that such a raid has never happened in U.S. history.

“I think we have to guard overzealous prosecution,” she said. “But members of Congress have to know that they have to abide by the laws of this land just like anyone else.”

And furthermore, the Wyoming Republican notes that the particular facts of this case make it clear that the warrant and search were appropriate.

Also, I came across this article by Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law.

But as the Supreme Court observed in the 1972 case of U.S. v. Brewster, the clause was never intended to immunize corrupt legislators who violate felony bribery statutes--laws that have expressly applied to members of Congress for more than 150 years. In Brewster, the court noted the clause was not written "to make Members of Congress super-citizens, immune from criminal responsibility," adding: "Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator."

Such behavior is therefore not protected by the Constitution. The purpose of the Speech or Debate Clause was to protect the integrity of the legislative process, and the court noted that bribery, "perhaps even more than Executive power," would "gravely undermine legislative integrity and defeat the right of the public to honest representation."

A dozen years ago, I testified before the House Committee on Administration on this same basic issue. Newt Gingrich and other reformers were trying to bring Congress under the same ethics laws it had imposed upon the rest of the country, and some indignant legislators seemed confident that the laws were not supposed to apply to them. The hearing was held in a small room in a part of the Capitol Building off-limits to the public, with exactly enough chairs for members, staff and the three witnesses.

Two members of the public who managed to make their way to the room were turned away on the grounds that there was "no room" for public observers.

Critics of the Gingrich proposal did not hear what they wanted. Some seemed genuinely shocked when I informed them that, in Federalist No. 57, James Madison noted one of the constraints in the Constitution to prevent legislators from enacting "oppressive measures" was that "they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society."

Indeed. Let's get away from the notion of Congressional Aristocracy.

Posted by: Greg at 09:40 AM | Comments (4) | Add Comment
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