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Who’s “Trampling” the Constitution?
In the Jefferson case, it's Congress, not the executive branch, mocking separation-of-powers.


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Andrew C. McCarthy

Later today, the Republican-led Congress is scheduled to raise to new heights of hysteria and arrogance its protest against the FBI’s search of the Capitol Hill office of Rep. William J. Jefferson (D., La.). But as House Judiciary Chairman James F. Sensenbrenner (R., Wi.) prepares what promises to be a contentious hearing–breathlessly titled, “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?”–we should note with gratitude that Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty, and FBI Director Robert Mueller have just enjoyed their finest hours.

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As leaders of agencies whose best traditions lie in apolitical, non-partisan law enforcement, all three were apparently prepared to do what the hierarchy of the Justice Department and the FBI must always be prepared to do if the rule of law, so vital to our nation’s prosperity, is to thrive. They were ready to resign over a matter of high principle.

According to several media reports (see here, here and here), the trio threatened to step down rather than carry out any presidential order to return the evidence that was lawfully seized from Jefferson’s office pursuant to a search warrant. Congressional leaders have been foot-stomping for just such an order. In the end, President Bush declined (although he did direct a face-saving, 45-day cooling-off period, during which the evidence will remain sealed and Congress, one hopes, will step back from the suicidal brink). Thus, justice may yet triumph over power politics.

Despite overwhelming evidence that Jefferson has disgraced their institution by prostituting his office for piles of cash, top legislators from both parties have rallied to his defense. They say they are defending a principle. In fact, they are perverting a privilege.

To be sure, members of Congress are not like the rest of us. They are the instantiation of our democratic self-determination. Through them, we exercise our power to govern ourselves. The Constitution thus vests them with broad immunities.

The speech-and-debate clause (Art. I, Sec. 6) is all the shield an honest public servant should ever need. It ensures that if a member of Congress is tending to legislative business–not just by speeches on the floor but through engagement in any legitimately legislative activity–that member need never fear prosecution or other legal fallout based on anything said or done. No resulting remark or action, however egregious–and no matter how quickly a similar transgression would subject a private citizen to crushing liability–can be used to threaten jail time or damages against one of the people’s representatives.

For congressional leaders, however, that is not enough. When it comes to their perks, nothing ever is.

They demand, instead, to be immunized from even being investigated. With stunning hauteur, they insist that “their” office space–space that actually belongs to the American people, and in which legislators enjoy the high privilege of serving the American people–has somehow transmogrified into their very own private felony safe harbor: An exclusive, members-only club, where evidence of bribery, fraud, obstruction, and any other violations of law and betrayals of the public trust can be hidden beyond the prying eyes of the public’s enforcement officers.

Talk about trampling the Constitution! This is a blatant distortion of Article I, which, immediately before immunizing speech and debate, expressly recognizes that members of Congress may be prosecuted for crimes.

Equally preposterous is the bunkum being brayed about an imperious executive branch asserting a monarch’s prerogative to rifle through legislative chambers. The Justice Department and the FBI have not come close to claiming such a right. The rule of law was scrupulously observed here.

Before they went anywhere near Jefferson’s office, the Justice Department served the congressman with a grand-jury subpoena, giving him the opportunity to turn over the evidence on his own. For you or me, a grand-jury subpoena is court process with which we must comply, no matter how inconvenient or embarrassing. Jefferson, however, decided he was above such laws.

Pause over that. The congressman did not march into federal court like an ordinary citizen must do if he believes a subpoena has been issued illegally or violates some valid privilege against producing evidence. He did not argue his point and wait for the judge to rule. He thumbed his nose in contempt. Congressional leadership has been deafeningly mum on that–something worth bearing in mind as they bellow about separation-of-powers.

Still, Justice and the FBI were determined to fight lawlessness with law. AG Gonzales and Director Mueller did not send their charges to raid Jefferson’s office. They sent them to court. For this was not a case about a national-security threat from a foreign power. It did not involve a realm committed by our system to executive judgments. Yes, a congressman was implicated, but this remained a case of ordinary law enforcement. Our system commits judgments about searches in that realm to the courts.

Which brings us, finally, to complaints about the FBI’s purportedly unguided ransacking of Jefferson’s office. This specious claim insults not only Justice Department officials, who plainly went the extra deferential mile out of respect for Congress, but the federal judiciary. It is the last refuge of those pretending to some higher cause than closing ranks around a public official allegedly videotaped accepting a $100,000 bribe (most of which was later found in his freezer), and in connection with whose corruption two people have already pled guilty to bribery charges.

Before he could authorize the search warrant, federal district judge Thomas Hogan had to make three findings that, naturally, congressional leaders prefer to ignore. There had to be (a) probable cause that a crime had been committed, (b) probable cause that evidence of that crime was inside the office, and, significantly, (c) particularity. This last owes to the Framers’ revulsion against so-called “general warrants” and “writs of assistance” which permitted indiscriminate searches of private property. The Fourth Amendment calls for search warrants to describe specifically the premises to be searched and the items to be seized.

Yes, a particularized search can still be broad. Financial fraud, for example, might call for seizing voluminous files. The protection against that, though, is its impermissibility unless the FBI can demonstrate, to the satisfaction of an impartial judge, probable cause of a crime rationally justifying an extensive search. In any event, search warrants do not license fishing expeditions. Unless they happen upon obviously criminal items (like, say, illegal drugs), the FBI is limited to seizing only items specifically set forth in the search warrant.

Here, moreover, the Justice Department added layers of protection in deference to speech-and-debate concerns. The team running the bribery investigation was walled off from the search. A non-case team executed the warrant, and a “privilege team” was assembled to vet any seized items, so that the case team would get only relevant evidence and any sensitive political materials not germane to the bribery probe would be returned to the House of Representatives. Far from trampling the Constitution, this search honored it, vindicating checks, balances, and institutional integrity.

In addressing Jefferson, the Justice Department and the FBI are dealing with an embarrassment to Congress for which Congress itself–though immersed in an ethical crisis–has shown no stomach. Instead of overwrought hearings, the Republican leadership ought to be figuring out a way to say “thank you.”

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.



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