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Throw the bums out!

From JURIST Legal News & Research:  

US Rep. James Sensenbrenner (R-WI), chairman of the US House Judiciary Committee, said Tuesday that he intends to draft legislation that would shield congressional documents and materials from being seized in searches similar to the FBI raid on the congressional office of Rep. William Jefferson (D-LA) earlier this month. Speaking during the committee’s Tuesday oversight hearing on the constitutional questions raised by the raid, Sensenbrenner also said that although the constitution’s Speech or Debate Clause will not protect members of Congress from prosecution stemming from activities outside of legitimate legislative acts, the clause prevents the executive branch from seizing documents created in the course of the legitimate legislative process.

With this move Sensenbrenner has assumed a mantle of arrogance so repugnant and antithetical to the Constitution that he needs to be removed from office by the voters of his district.  He has gone beyond merely being “out-of-touch” and moved headlong into being drunk with power by assuming privileges in direct conflict with the Constitution he swore to uphold.  There is nothing in the Constitution that shields Congressmen under investigation for corruption from having their offices searched with evidence being seized once a legal warrant has been served — including official papers.  The Speech or Debate Clause does not provide Congressmen such an exemption and it is ridiculous to assert that it does.  He is claiming a “legislative privilege” as broad in scope and prone to thwarting any investigation of criminal wrongdoing by Congressmen as what former President Nixon attempted during the Watergate scandal.  If Sensenbrenner believes documents not outlined in the FBI’s warrant were improperly taken than there are avenues to resolve that, but Congress has no authority or role in exempting documents from being seized under a legally-obtained warrant.

The Rayburn House Office Building belongs to the People and the People’s investigators, the FBI, followed the Constitution in properly obtaining a warrant through the courts to search them and seize the evidence found therein.  Not even the personal belongings of individual members of Congress within those offices are exempt from being properly seized once a warrant has been served — the same as it is for each and every one of us.  What Sensenbrenner and many Congressmen are so cavalierly asserting is a ‘right’ not enjoyed by every other American citizen and this is an attempt by them to place themselves above the law.  This move is nothing but pure hubris and a direct threat to the rule of law and the Constitution.  Sensenbrenner and all of his allies in this regardless of party need to be turned out of office this November by the voters in order to preserve that bedrock American principle that no one, including members of Congress, is above the law.  Members of Congress are not titled peerage nor do they have the privileges of royalty, but instead are servants of the People and it is time that the People exercise their displeasure by reminding them of this fact because it would seem many Congressmen have forgotten.

For leaders fatuously claiming to be defending their ‘rights’ as an equal branch of Government, I do not recall Speaker Hastert, Minority Leader Pelosi, or Chairman Sensenbrenner barring an FBI SWAT team from entering their sacred inner sanctum the other day when a threat was perceived.  Curious… 

For more I highly recommend Andrew McCarthy’s superb column in National Review along with this by the editors of the Washington Post.

Hat tip:  QandO

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13 Comments

  1. The debate over the FBI investigating a congressman and raiding his office is missing a crucial topic. Namely, the reason why seperation of powers is important here.

    Seperation of powers is not merely another way of saying “checks and balances.” Seperation of powers means that one branch of governement cannot run ramshod over another branch of government and it cannot use it’s enumerated powers to intimidate or manipulate another branch.

    For example:

    Abuse of power by the executive branch can be checked by the other two branches via impeachment or lawsuit.

    Wacky decisions by the judicial branch can be overturned by constitutional amendment (or via changing the wording of a statute).

    Bills passed by the legislative branch are reveiwed by the executive and cannot become law without approval and are also reveiwed by the judicial branch.

    The reason why I’m uncomfortable with the raid, and why I think Congress is uncomfortable with the raid is because if the executive branch has the unchecked power to investigate and arrest members of Congress, what is to stop the executive branch from using this power to intimidate Congress? Is it outside the realm of possibilities that a president of one party could have the FBI *not* investigate members of his/her own party or use the threat of criminal investigation to coerce a member of Congress to vote a certain way? No, it isn’t. And while there are several layers of protection built into the system to prevent that, it has happened before and could happen again. Barriers already in place to protect one branch of government from abuse by another branch of government should be respected and reinforced.

    Should corruption and illegal activity in ANY branch of government at ANY level of government be investigated and prosecuted. HELL YES. I am in no way being an apologist for Rep. Jefferson. Should the FBI be the one to investigate Congress? I don’t know. Maybe. Maybe not.

    What I do know is that no branch of government should ever be allowed to have more power than any other branch. An imbalance only leads to tyranny.

    Comment by NOLAGayGuy — June 1, 2006 @ 12:22 pm - June 1, 2006

  2. I think Sensenbrenner is on solid constitutional ground in proposing his legislation. That said, his bill needs to be narrowly tailored. For it seems that Louisiana’s Jefferson was attempting to use constitutional protections to conceal criminal activity.

    The Speech and Debate clause does not make congressional offices off-limits to federal investigators. It makes certain contents of those offices off-limits. Items, such as cash, illegally acquired are obviously not covered.

    It’s absurd to think that congressional offices are some kind of “sanctuary.” If they were, there would be an incentive for Congressmen to hide evidence of criminal behavior there.

    This just shows how far from the Contract with America some Republicans have strayed.

    Comment by Dan (AKA GayPatriotWest) — June 1, 2006 @ 1:22 pm - June 1, 2006

  3. National Security would be grounds for excluding materials from Congressional offices I would think. And if a subpoena were issued for materials from the Oval Office, you can bet that wouldn’t fly either. And what about Dick Cheney’s right to hold secret meetings with lobbyists?

    Comment by Patrick (Gryph) — June 1, 2006 @ 4:52 pm - June 1, 2006

  4. Seperation of powers means that one branch of governement cannot run ramshod over another branch of government and it cannot use it’s enumerated powers to intimidate or manipulate another branch.

    I call Bullshit!
    That wasn’t done. A warrant was served and a impartial group was in place to make sure that what was seized was Kosher. Congress already has privleges that you and I don’t. We can be pulled over and ticketed for speeding. Congressman and Kennedys can’t.

    We’re not talking about the Exucutive Branch stealing somebody’s homework on a bill. We’re talking about a crime that was committed. If we allow this “separation of powers” bullshit to take precedent, anybody in Congress can do as they damn well please and take sanctuary in their office.

    Comment by ThatGayConservative — June 2, 2006 @ 5:33 am - June 2, 2006

  5. I respect your opinion ThatGayConservative. And I agree with your basic point which is (a) congressman are not above the law and (b) separation of powers cannot be allowed to be used as protection from prosecution.

    I concede that in the case of Rep. Jefferson, the executive went to great lengths – appropriately so – to ensure fairness in the investigation and to eliminate the possibility of political intrigue. I give my full respect to the Justice Department and the FBI for their handling of the case.

    I believe that Rep. Jefferson should be prosecuted, assuming the evidence supports such an action. My only concern is how that evidence is collected and, more importantly, by whom.

    My argument is about the broader issue at hand. It is about ensuring that constitutional, statutory, and procedural restraints are in place to prevent the abuse of one branch of government by another branch of government. The Framers knew that human nature cannot be trusted. Just because in one instance government acted with honor doesn’t in anyway, shape, or form require that future actions by future executive branch officials will act with that same honor.

    Separation of Powers does not prohibit one branch from investigating another. The most extreme example of course is the power of impeachment. Separation of Powers however does require that very strict, difficult requirements must be met before one branch of government and act against another.

    My argument follows the same basic principle behind Ronald Reagan’s “trust, but verify” approach to nuclear disarmament with the Soviet Union. The Legislative and the Executive branches surely can design a system that allows for the effective investigation of illegal and improper behavior of a Congressman/woman that at the same time prevents potential abuse of that investigative power by the executive.

    Comment by NOLAGayGuy — June 2, 2006 @ 11:43 am - June 2, 2006

  6. President Bush has used poor judgment in this case. He ordered the materials taken from Congressman Jefferson’s office temporarily removed from the FBI’s custody.

    Some observers have speculated that Bush slapped the FBI in the face to coddle the Speaker, whose support Bush needs on immigration legislation. Some news reports from Washington alleged that both the Attorney General and FBI Director considered resigning to protest Bush’s action against the FBI.

    Comment by Trace Phelps — June 2, 2006 @ 5:43 pm - June 2, 2006

  7. Seperation of powers is not merely another way of saying “checks and balances.” Seperation of powers means that one branch of governement cannot run ramshod over another branch of government and it cannot use it’s enumerated powers to intimidate or manipulate another branch.

    Interesting, yet unnecessary. I’m aware of the purpose for the separation of powers. This is also irrelevant as the Executive was in no way “run[ing] ramshod” over the Legislative. The Legislative Branch wasn’t even itself targeted, but one member who was accused of transgressing the law. The Exceutive acted under the law and Art. II Sect. 3 in investigating and sought a warrant from the Judicial Branch to search for evidence in compliance with the 4th Amendment. This was only after Congressman Jefferson ignored a subpoena from a grand jury which he has no authority or right to do. The other two branches acted under the authority granted by the Constitution and the Legislative cannot ignore that authority because it feels slighted. Frankly, tough noogies.

    The reason why I’m uncomfortable with the raid, and why I think Congress is uncomfortable with the raid is because if the executive branch has the unchecked power to investigate and arrest members of Congress, what is to stop the executive branch from using this power to intimidate Congress?

    Besides the purse strings by denying all funding to the FBI, it has the awesome power of impeachment and removal of the president or any officer acting under his orders. By the actions Sensenbrenner it attempting the reverse is being called for: hamstringing the authority of the Executive and the Judicial which subverts this delicate balance established by the Constitution.

    Should corruption and illegal activity in ANY branch of government at ANY level of government be investigated and prosecuted. HELL YES. I am in no way being an apologist for Rep. Jefferson. Should the FBI be the one to investigate Congress? I don’t know. Maybe. Maybe not.

    Congress was not and is not under investigation by the FBI, Jefferson is. He gains no special immunity from prosecution because he is a member of Congress and the Legislative does NOT have the authority beyond impeachment and removal from office to prosecute him.

    What I do know is that no branch of government should ever be allowed to have more power than any other branch. An imbalance only leads to tyranny.

    Which is exactly what Sensenbrenner’s bill will do. Talk about shades of the Radical Republicans of old!

    Comment by Average Gay Joe — June 2, 2006 @ 7:10 pm - June 2, 2006

  8. I think Sensenbrenner is on solid constitutional ground in proposing his legislation.

    Really? Under what section, Dan?

    That said, his bill needs to be narrowly tailored. For it seems that Louisiana’s Jefferson was attempting to use constitutional protections to conceal criminal activity.

    “Narrowly tailored” in what manner exactly? Sensenbrenner is asserting for a privilege the Constitution does not grant him or the Congress as a whole. He is placing himself and members of Congress above the law which is intolerable.

    The Speech and Debate clause does not make congressional offices off-limits to federal investigators. It makes certain contents of those offices off-limits. Items, such as cash, illegally acquired are obviously not covered.

    Which “contents”? Evidence of a crime as outlined in a warrant is material, not just cash, which includes just about everything. There is nothing exempted or are we to pencil in special privileges no one else enjoys? Not even Nixon received such a privilege when it came to his infamous tapes — which was the correct decision by SCOTUS.

    This just shows how far from the Contract with America some Republicans have strayed.

    Too true, but then the GOP has done so very much in betraying its principles since then it’s hard to put all of it done in a cogent list.

    Comment by Average Gay Joe — June 2, 2006 @ 7:16 pm - June 2, 2006

  9. National Security would be grounds for excluding materials from Congressional offices I would think.

    That would be laughed out of court. I’d dearly love to see this claim asserted. National security grounds lie in the Executive and isn’t normally seen as a function of the Legislative.

    And if a subpoena were issued for materials from the Oval Office, you can bet that wouldn’t fly either. And what about Dick Cheney’s right to hold secret meetings with lobbyists?

    All within the authority of the Executive, which the Legislative can trim if it so chooses. This claim didn’t prevent Nixon from handing his tapes over, Clinton from testifying or being sued, etc. Executive privilege has its limits and works on trust between the two Branches. When the Executive abuses it, watch how it gets nipped by the other two Branches.

    Comment by Average Gay Joe — June 2, 2006 @ 7:19 pm - June 2, 2006

  10. We can be pulled over and ticketed for speeding. Congressman and Kennedys can’t.

    In fairness, that’s only when they are commuting to and from Congress, while attending a session of Congress, or for anything they say in a speech or debate. There are exceptions of course, “treason, felony and breach of the peace”. Patrick Kennedy may have been wasted but had the presence of mind to remember this and gave the one explanation that saved his butt from being arrested. Had he said something else he would have locked up like anyone else.

    Comment by Average Gay Joe — June 2, 2006 @ 7:23 pm - June 2, 2006

  11. The Legislative and the Executive branches surely can design a system that allows for the effective investigation of illegal and improper behavior of a Congressman/woman that at the same time prevents potential abuse of that investigative power by the executive.

    If such a proposal doesn’t upset this balance of powers or grant special privileges the Constitution doesn’t contain, I have no problem. Yet Sensenbrenner includes exemptions and privileges which are not acceptable and in fact subvert the Constitution.

    Comment by Average Gay Joe — June 2, 2006 @ 7:25 pm - June 2, 2006

  12. President Bush has used poor judgment in this case. He ordered the materials taken from Congressman Jefferson’s office temporarily removed from the FBI’s custody.

    Not necessarily. He has the authority to do what he did and realpolitik must be taken into account. It is responsible for the president to avoid a constitutional conflict, which he’d win in this case but it would still be messy. Now if he hands the documents back, well that’s another kettle of fish entirely…

    Comment by Average Gay Joe — June 2, 2006 @ 7:27 pm - June 2, 2006

  13. I think AverageGayJoe and I are actually pretty much in agreement. If anything, differences in our opinion probably come from the fact that AverageGayJoe is talking about the specific case of Rep. Jefferson and I’m talking about the more abstract general concept. And even then, I don’t think our differences are actually that far away from each other.

    We both agree that a congressman/woman – indeed any elected official – is not above the law and cannot use their elected position as a shield from investigation or prosecution.

    We also agree that a fundamental element of separation of powers is its crucial purpose to prevent one branch of government from having too much power, control, or influence over either of the other two branches.

    We both agree that the actions of the FBI and the Justice Department as they pertain to the investigation of Rep. Jefferson for corruption and bribery were both appropriate and well within the constitutional purview of the executive branch’s responsibility to enforce the law.

    Finally, we agree that the actions of Rep. Jefferson in refusing to comply with lawful warrants and subpoenas are inexcusable.

    I guess what I’m looking for is a set of procedures, codified by statute, that spell out exactly who can investigate a member of congress, how that investigation must be conducted, and what independent oversight of the investigation occurs so that both the supremacy of the law over ALL citizens is ensured at the same time that sufficient safeguards exist to prevent abuse of executive power (or, conversely, abuse of so called “legislative privilege”).

    I want this because I inherently distrust the ability of each and every individual, now and in the future, who is endowed with political power, to always and forever be faithful to the principles of limited government. Of course, laws in and of themselves won’t prevent bad people from abusing power, but it can certainly prevent good people from making mistakes.

    The way the FBI handled the case of Rep. Jefferson absolutely satisfies my basic concerns. Were these procedures the best way? I can’t honestly say because my knowledge of law is far too limited to speak to that point. But I see a debate over these procedures to be where time and attention should primarily be focused.

    Comment by NOLAGayGuy — June 3, 2006 @ 12:16 am - June 3, 2006

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