To read this article, that is precisely the claim that is being put forward by members of both bodies from both sides of the aisle.

An unusual FBI raid of a Democratic congressman's office over the weekend prompted complaints yesterday from leaders in both parties, who said the tactic was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government.

Rep. William J. Jefferson (La.), who is at the center of a 14-month investigation for allegedly accepting bribes for promoting business ventures in Africa, also held a news conference in which he denied any wrongdoing and denounced the raid on his office as an "outrageous intrusion." Jefferson, who has not been charged, vowed to seek reelection in November.

"There are two sides to every story; there are certainly two sides to this story," he said at a Capitol Hill news conference. "There will be an appropriate time and forum when that can be explained."

The Saturday raid of Jefferson's quarters in the Rayburn House Office Building posed a new political dilemma for the leaders of both parties, who felt compelled to protest his treatment while condemning any wrongdoing by the lawmaker.

The dilemma was complicated by new details contained in an 83-page affidavit unsealed on Sunday, including allegations that the FBI had videotaped Jefferson taking $100,000 in bribe money and then found $90,000 of that cash stuffed inside his apartment freezer.

So what is the problem that some folks are pointing to here? Is there one at all? IÂ’ll let some of them tell you. Some are elected officials, some are former staffers, and some are legal scholars.

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," he said in a lengthy statement released last night.

"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress," he said. "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."

House Minority Leader Nancy Pelosi (D-Calif.) said in a statement that "members of Congress must obey the law and cooperate fully with any criminal investigation" but that "Justice Department investigations must be conducted in accordance with Constitutional protections and historical precedent."

* * *

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line "on the edge of a constitutional confrontation," called the Saturday night raid "the most blatant violation of the Constitutional Separation of Powers in my lifetime." He urged President Bush to discipline or fire "whoever exhibited this extraordinary violation."

Well, if we were going to deal with issues of historical precedent, then Jefferson would be cooperating with the investigation. He isn't, prompting the more adversarial approach.

Legal experts are divided on the issue.

Many legal experts and defense lawyers agreed with Gingrich. Charles Tiefer, a University of Baltimore law professor who served as solicitor and deputy general counsel of the House for 11 years, called the raid "an intimidating tactic that has never before been used against the legislative branch."

"The Framers, who were familiar with King George III's disdain for their colonial legislatures, would turn over in their graves," Tiefer said.

Washington defense lawyer Stanley M. Brand, a former general counsel for the House who has represented numerous lawmakers accused of wrongdoing, also questioned the government's strategy.

"This is really an over-the-top move, and it could create some real blow-back problems for them in the courts," he said.

But Viet D. Dinh, a former assistant attorney general in the Bush administration who is now a Georgetown University law professor, said that "the raid on his offices itself does not define a constitutional issue."

The constitutional privilege for lawmakers does not "expand to insulate everything that goes on in a congressional office, especially if there's allegations of abuse of process or bribery," Dinh said. ". . . The fine line is whether or not it relates to a legislative process or not, not whether they've raided his office."

So what constitutional provision are they referring to that they believe gives Jefferson immunity from the same laws that apply to every other American? It is found in Article I, Section 6, Clause i.

Article I, Section 6, Clause i 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. (italics added)

Now letÂ’s break this down.

The FBI had a valid warrant issued by a federal judge or magistrate, authorizing the search under the provisions of the Fourth Amendment. The limits placed upon the agents conducting the search were meticulously designed to keep from interfering with any privileged materials. So far, we are seeing actions in conformity with the Constitution, and special deference being given based upon the respect due a co-equal branch of government.

Attorney General Alberto Gonzales, asked about the search, said he understands the concerns raised about FBI agents raiding a congressional office.
"I will admit that these were unusual steps that were taken in response to an unusual set of circumstances," Gonzales said.

The search warrant affidavit spells out special procedures put in place to ensure the search did not infringe on privileged material. The procedures include use of a "filter team" of prosecutors and FBI agents unconnected to the investigation. They would review any seized items or documents and determine whether the documents are privileged and therefore immune from the search warrant.

If the status of a document is in doubt, the filter team will give the documents to a judge for a definitive ruling before giving them to case prosecutors, according to the affidavit.

There is the question of whether these charges can be brought while Congress is in session. In light of the fact that the matter at hand (accepting bribes) is a felony, Representative Jefferson is subject to indictment, arrest, and trial while Congress is in session. Such charges and arrest are therefore clearly contemplated and permitted by the Founders – and therefore an investigation is equally permissible. And in light of historical precedent, the investigation and bringing of charges are accepted practice.

What is more, the search is for materials related to an alleged felony, not words in a speech or a debate on the floor of the House of Representatives. It is not JeffersonÂ’s words, but his actions, that led to this search, and a search of his offices is a legitimate exercise of police powers to the degree that his action (accepting a bribe) may have impacted the operations of his Congressional office. Again, given the meticulous procedures put in place when the warrant was issued, there can be no legitimate question regarding the respect shown for the co-equal legislative branch. Not only is this not a case of the Executive and legislative branches operating outside of their proper spheres, it is a case of them operating within those spheres to serve as a check and balance upon Congress.

Nothing in Article I, Section 6, Clause i can be legitimately interpreted to apply to the current situation – nor can this provision of the Constitution be held to exempt the criminal conduct of a lawmaker from the ordinary operation of the law in this situation. I therefore find the outrage expressed at this search to be specious in nature, premised not upon the text of the Constitution itself but rather upon the belief that the separation of powers confers a degree of immunity beyond that which the blueprint of American government provides.

Posted by: Greg at 11:46 AM | Comments (2) | Add Comment
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