Wednesday, May 31, 2006

Quid Pro Squash

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Based on some pretty convincing evidence gathered by the FBI, Democratic Representative William Jefferson of Louisiana is a scumbag of the highest order. Back on May 20, the Bureau conducted a late-night raid on Jefferson's offices at the Rayburn Building. They had a warrant, based on alleged videotape that showed Jefferson accepting $100,000 in cash from an FBI informant at a hotel in Arlington Virginia. A subsequent search of Jefferson's home discovered $90,000 of that money concealed in his freezer.

Even so, this was the first time in the nearly two hundred and twenty year history of our nation that the Justice Department had used a warrant to search the offices of Congress. What is more, they carried away computer and other records in their pursuit of evidence. As a result, Jefferson – the scumbag – is suddenly earning bipartisan support as the most wronged man in the country by his fellow legislators. There’s More... Expand PostRepublicans and Democrats could not agree on immigration policy or social security reform or gay marriage or the Iraq War but they are united in agreement that a bribe-taking Representative got a raw deal from the FBI.

The argument is that this is something "bigger than Jefferson." Republican House Speaker Dennis Hastert and Democratic Leader Nancy Pelosi issued a rare joint statement last week protesting the raid as a violation of Constitutional separation of powers. House Majority Leader John Boehner predicted the matter would end up in the Supreme Court. GOP Judiciary Committee Chairman James Sensenbrenner of Wisconsin held a hearing entitled, "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?" and now says he will next call Attorney General Alberto Gonzales and FBI Director Robert Mueller before his panel to explain themselves.

Yet the high passions and self righteousness are not limited to Congress on this matter. When cries first began for the FBI to return the materials seized from Jefferson's office, Gonzales indicated he might resign rather than do so. President Bush then interceded by directing the Department of Justice to seal the materials for a forty-five day "cooling off" period. Even that was enough to trigger indignation. "What is [Bush] saying? His own Justice Department was wrong?" one senior law-enforcement official fumed to Newsweek.

At the heart of the standoff is a Constitutional issue, relating to Article I, Section 6, Clause 1, which says, "[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." [my emphasis]

Based on established jurisprudence, that is a pretty lame defense for Representative Jefferson in this matter. Back in 1880, the Supreme Court ruled in the case of Kilbourn v. Thompson that the Speech and Debate Clause meant that members of Congress and their aides are immune from prosecution for their "legislative acts." In order words, the clause does not protect members of Congress from prosecution for any criminal acts they might commit but rather from prosecution for unpopular political views. This position was later reinforced by the cases of Browning v. Clerk, U.S. House of Representatives in 1986 and United States v. Rostenkowski in 1995.

That may be so, say many in Congress, but today is a different time facing different realities. Jefferson is an eight-term Congressman and the senior member on the powerful House Ways and Means Committee. As such, he may have been given briefings and various sensitive materials related to the Iraq, terrorism, and other matters of homeland and national security. The FBI cannot search his seized records for evidence of bribery without inadvertently opening these sensitive materials and thus compromising them.

The Justice Department counters such an interpretation is flatly ridiculous. It would extend the Speech and Debate Clause's immunity so far that it would make it impossible to search any place that might contain even one privileged document. Such a step would be "fundamentally inconsistent with the bedrock principle that 'the laws of this country allow no place or employment as a sanctuary for crime'," they said in papers filed with U.S. District Court in the District of Columbia.

Given the sleazy nature of Jefferson's alleged crimes and the fairly solid evidence against him, it is easy to join the Boston Herald in asking, "So is this really the man that Republicans in Congress want to be out on the front lines defending when they're fighting for their political lives?"

Yet Congressional fears of abuse of powers are far from misplaced.

House Minority Whip Steny Hoyer of Maryland raises a valid question when he asks why Justice Department officials saw the need to break tradition and raid the offices of a Democratic Representative even while current and former Republican lawmakers are under investigation. "It certainly has been disparate treatment," he said.

Likewise, the Department of Justice is still furiously backpedaling from initial confirmation by one of its spokespersons to a report by ABC News that House Speaker Dennis Hastert – an outspoken critic of the FBI raid – was himself under investigation by the FBI as part of the corruption probe centered around convicted lobbyist Jack Abramoff. That led many to defend the Speaker and insist the report was a form of retaliation for his non-cooperation regarding Jefferson. "You know this is one of the leaks that comes out to try to intimidate people. And we're just not going to be intimidated on it," Hastert told WGN Radio.

What ought to have happened in this case seems straightforward to me. Whether U.S. Representative or average citizen, Jefferson ought to have cooperated with or at least not attempted to oppose the FBI investigation against him. The FBI was well within its rights and normal operating procedures to obtain a warrant to search Jefferson's office and home for evidence. However, especially giving the precedent-breaking nature of the search, to do so in the middle of the night and without prior notification was going too far on the Bureau's part, even if it is becoming an increasingly troubling modus operandi for them.

Yet the insistence by Congress that it ought to be above the Constitution does not surprise me either, particularly in light of the security angle they insist is involved. They are simply mirroring the kinds of protections and special powers they have provided to the Executive Branch since the aftermath of the September 11 attacks. They have repeatedly rolled on their backs in granting the Bush Administration extended powers or failing to exercise their own powers. Their initial passage and subsequent renewal of the Patriot Act empowered the very Justice Department by whose actions they are now outraged.

Sure, it is all very hypocritical but Congress made the mistake of assuming that the three branches of government were being hypocritical together. It was supposed to be quid pro quo. I scratched your back, they are telling the Executive Branch, now it is time for your to rub our upturned belly. Unfortunately, as they are finding out, it does not work that way. The Bush Administration was never interested in growing the powers of the Federal Government due to the exigencies of foreign terrorism; they desired the advancement of the Executive Branch at the cost of all others. The Justice Department is no longer bound by the Constitution in order to catch nasty Islamic extremists; the same cannot be said for members of Congress.

It will be very hard for Congress to get back what they have already surrendered but at least they may show more circumspection in the future about rolling over. Power corrupts. Giving it to one side does not lead to quid pro quo but quid pro squash – squashing the powers and rights of everyone else, that is. It is indeed unfortunate as sordid a character as Jefferson was required to wake up Congress but thank heavens they are at least awake now to some other sordid things which they have had a hand in supporting.