Tuesday, May 23, 2006

Search of Jefferson Offices Not Only Constituional, but Necessary

The case of Rep. William Jefferson presents such interesting political and legal dynamics. While certainly the case and the search of Jefferson's Congressional offices are unusual, I don't think that it rises to the level of a constitutional violation. According to the Washington Post,
Legal experts were divided on the legality and propriety of the FBI's raid, but many said that it could raise serious evidentiary problems for prosecutors at trial. In scores of cases of alleged congressional wrongdoing, federal prosecutors and FBI agents have most commonly sought to issue subpoenas for documents rather than conducting an impromptu raid on congressional property, experts said.

At issue is the "speech or debate" clause of the Constitution -- language intended to shield lawmakers from intimidation by the executive branch. Historically, courts have interpreted the clause broadly, legal experts said.
First, I seriously doubt that this raid was "impromptu" by any stretch of the imagination. Given that it took place on the weekend, so as to minimize disruption seems significantly well planned. Second, the FBI is looking for physical evidence, i.e. the alledged bribe money, simply subpoenaing documents would be insufficient.

But, fair enough, the issue is the Speech and Debate clause. As it bears significantly upon this case, let us go to the source document, the Constitution. The section relevant here comprises two parts, the immunity from arrest clause and the speech and debate clause. Article I, Section 6 reads:
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 Peach, 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. (empahsis added)
The speech and debate clause is generally read to be pretty broad, encompassing not only speech and debate on the floor of the House, but also in committee and even speeches outside of Congress, including any speech or debate while tending to legislative duties. The clause also provides an umbrella of coverage for discussions with staff members, so that a Member of Congress or a Senator can receive fair, open and unqualified advice from their staff.

When it comes to a Member's legislative duties, I am fully supportive of a broad exemption from harassment by the other branches of government. But what legislative duty is being fulfilled in a bribery case? I have looked through Article I, Section 8 and 9 and in fact the entire Constitution, and I don't see bribary as a proper legislative duty.

But at the same time, we should not read the Speech and Debate clause out of context. Note that the speech and debate clause appears with the immunity from arrest clause. In plain English, a member of Congress can't be arrested while tending to official duties, except in cases of treason, felony, or breach of the peace. Let me say that again, a member can't be arrested except for cases of treason, felony or breach of peace.

Jefferson is under investigation for bribery, which in every state in the union, the District of Columbia, and under federal law, is a felony. Thus, Jefferson can be arrested, even while in session, for the felony of bribery.

The speech and debate clause is part of the same sentence as the immunity from arrest part. The whole sentence is designed to insulate the legislative branch from executive interference, assuming of course the Legislators are acting within the law. Congressmen are not above the law and are not exempt from the normal processes of law enforcement if they are suspected of breaking the law. More from the Washington Post article:
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.
Let us be clear, just because a search of a Congressman's office has never been done, does not mean it can't be done. The fact that the search occured itself is so unusual that I am sure the Department of Justice made sure they had an iron-clad search warrant before proceeding. But let's look at the search in the context of the investigation. According to news reports, Jefferson is allegedly on an FBI video tape taking a $100,000 bribe. A search of Jefferson's home reportedly turned up $90,000. It is not an unreasonable stretch of logic to believe that the remaining funds might be in his office.

If this had been an ordinary citizen, the fact that his office was searched would never even be a question. If a person is being investigated for bribery, his home, his car, his office, everything would be searched and no one would consider it unreasonable. But just because Jefferson is a Congressman, the rules should be different?

The Framers may very well be turning over in their graves, but not because of this search. Rather, I am sure the Framers would be appalled at the scope of corruption in Congress today. So far, we have had three former Members of Congress sent to prison in the past five years, Jim Trafficant, Duke Cunningham and William Janklow. We have three members of Congress under active investigation, Alan Mollohan, Bob Ney, and Jefferson. Literally dozens of others are combing their records and recollections about Jack Abramoff. Corruption is a real concern and that is what the Framers are likely more worried about.

The real victim in this whole scenario is the American people. Instead of pledging cooperation to ensure the integrity of the institution, when a search like this happens, the first Congressional thought, in a rare bipartisan fashion, that appears in the papers is "this search is a constitutional violation." Have we forgotten that a search would not have been necessary if one of their own had not possibly crossed a line into illegality? Where is the concern for the image of Congress, for the image we give all America and the world? Right now, we must be the laughingstock of the world when Congressional leaders circle the wagons instead of upholding a rule of law. If a Congressional office has never been searched in 219 years, what does it say when this one is searched? That the crime involved is so significant that the DOJ felt compelled to break what is a very long streak and take heat for a non-existant constitutional violation.

What has been wrought upon us by a Congress that thinks, more and more, that it is beyond reproach? The righteous indignation for executive and judicial branch activities appears nowhere when the crosshairs of the media focus on the nefarious acts of legislators. Where is the concept of being held to a higher standard? Where is the shame?

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