Tuesday, May 23, 2006

Because Congressmen Are Special Creatures

Is it just me or does the congressional outcry over the FBI raid of Rep. William Jefferson’s office come across as a little strange? The idea that Jefferson’s office is protected from this kind of search seems idiotic and the complaint that it is unconstitutional because it violates “the principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech and Debate clause of the Constitution” is even more odd.

There was no “invasion” of the legislative branch, as Speaker Hastert would have us believe. There was a search and seizure in relation to a criminal investigation of a man who may have accepted about half a million dollars in bribes (nearly one hundred thousand of which was stuffed into his freezer at home), an act that is in no way prevented by the Constitution. The Constitution does not protect members of congress from searches and investigations nor should it. These people are in no way so priveleged that their criminal acts should not be punished or pursued.

Nor was it a violation of the “Speech and Debate” clause. This lengthy bit from FindLaw ends up discussing, fairly specifically, prosecution in a bribery case. It would seem that there is precedent to support an investigation and a seizure in relation to bribery charges (reading the rest will give a pretty broad picture of the scope of the Speech and Debate clause and its intent).

The protection of this clause is not limited to words spoken in debate. ‘’Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.’’’ 385 Thus, so long as legislators are ‘’acting in the sphere of legitimate legislative activity,’’ they are ‘’protected not only from the consequence of litigation’s results but also from the burden of defending themselves.’’ 386 But the scope of the meaning of ‘’legislative activity’’ has its limits. ‘’The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.’’ 387 Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties flows from a determination that a challenged act is within the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.
However, inUnited States v. Brewster, 399 while continuing to assert that the clause ‘’must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,’’ 400 the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ‘’influenced in his performance of official acts in respect to his action, vote, and decision’’ on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ‘’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 . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as inJohnson, for use of a Congressman’s influence with the Executive Branch.’’ 401 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution. 402

Files, notes, and reciepts in relation to illegally funneling money in return for using congressional influence isn’t protected in reference to the “process or function” of the legislator’s job. Therefore investigation of those activities isn’t a punishment for Johnson’s political views or actions, it’s an investigation of his illegal activity unrelated to his legitimate activities as an elected official.

For that matter, the clause, as read, doesn’t seem to preclude searches of Johnson’s office, either.

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.

Even if there were precedent for saying that Johnson’s files and office were normally inviolable, the fact that he is being investigated for a felony offense seems to give the FBI cause for the search.

If Bush were calling out the FBI to investigate and harry a congressman because that legislator consistently voted in opposition to the President’s agenda, then there would be room for complaint. But the “principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech and Debate clause of the Constitution” were never intended to protect elected officials from the ramifcations of their own illegal acts.

Of course, the caveat here is that I am not a constitutional scholar nor am I a lawyer. But, as a marginally reasonable American, I find offensive the assertion that congressmen might be able to hide their dirty little secrets in their congressional offices (supposedly safe from searches) while hiding behind their status as extra-special priveleged citizens. It smells like the kind of ass-covering that makes us normal folk wonder what the hell the ruling class is doing while we aren’t looking.

Update: (The link has been corrected). Will Collier and the Investigative Team at VodkaPundit have insider info about Jefferson’s misdeeds. I had accidentally linked to The Modulator’s note about a distinction of which America shouldn’t be particularly proud. It has nothing, really, to do with this story, but the links stays.

Update to the Update: Can I get a hell yeah?

Nowhere — nowhere — does Hulse mention that the search took place pursuant to a judicial warrant obtained by the Justice Department only after a federal judge found probable cause both that a crime had been committed and that evidence of that crime was likely to be found in the place to be searched.
Meanwhile, the Times ends its account with a word from the GOP’s new fearless leader, Rep. John Boehner, wondering aloud “whether the people at the Justice Department have looked at the Constitution.”

I defy Boehner to explain where in the Constitution it says that crooks who happen to be congressmen are free to use office space that belongs not to them but to the American people in order to hide the proceeds of their violations of the public trust from agents conducting an investigation on behalf of the American people.


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