Once again the administration has stepped into a political buzzsaw involving issues of separation of powers.
And, it now turns out, the government reportedly knew that this raid was indeed unprecedented — which suggests bipartisan concerns over this not being separation-of-power as usual have some foundation. The Washington Post reports:
An unusual FBI raid of a Democratic congressman’s office over the weekend prompted complaints yesterday from leaders in both parties, who said the tactic was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government.
Rep. William J. Jefferson (La.), who is at the center of a 14-month investigation for allegedly accepting bribes for promoting business ventures in Africa, also held a news conference in which he denied any wrongdoing and denounced the raid on his office as an “outrageous intrusion.” Jefferson, who has not been charged, vowed to seek reelection in November.
How seriously do members of Congress view it? Consider: Democrats were going to partly run on the Republicans’ “culture of corruption” theme. When details about the Jefferson case hit the news media, Republicans seemed poised to use this case to throw back at the Democrats to show their party has its share of hanky-panky, too. But Republicans are upset about this raid, too — so they’re speaking out:
The Saturday raid of Jefferson’s quarters in the Rayburn House Office Building posed a new political dilemma for the leaders of both parties, who felt compelled to protest his treatment while condemning any wrongdoing by the lawmaker. The dilemma was complicated by new details contained in an 83-page affidavit unsealed on Sunday, including allegations that the FBI had videotaped Jefferson taking $100,000 in bribe money and then found $90,000 of that cash stuffed inside his apartment freezer.
Republican leaders, who previously sought to focus attention on the Jefferson case as a counterpoint to their party’s own ethical scandals, said they are disturbed by the raid. Senate Majority Leader Bill Frist (R-Tenn.) said that he is “very concerned” about the incident and that Senate and House counsels will review it.
And CBS, in a CBS/AP report, notes that the government knew this raid was unprecedented:
House Speaker Dennis Hastert said the Justice Department had never before crossed a line that separates Congress from the executive branch by searching a congressional office while investigating a member of Congress.
CBS News has learned that FBI officials considered Saturday night’s raid of Jefferson’s office so sensitive that they activated a special command center to monitor the unprecedented search.
CBS News correspondent Gloria Borger reports that operation was the latest step in an investigation that’s been underway since last year, and which plays out like a parody of Washington corruption.
So you have two issues here (a) the investigation of Jefferson and (b) the fact the government just expanded its powers by changing the conventional wisdom. Was it legal? Probably. But that may not be enough to stem unease growing in many quarters. Bloomberg‘s report is even more blunt:
House and Senate leaders challenged the constitutionality of an FBI raid on a lawmaker’s office, saying it broke a 219-year precedent and raised concerns about the separation of power between the administration and Congress.
“The actions of the Justice Department in seeking and executing this warrant raise important constitutional issues,” House Speaker Dennis Hastert, an Illinois Republican, said in a statement last night. “I expect to seek a means to restore the delicate balance of power among the branches of government that the founders intended.”
House Democratic leader Nancy Pelosi of California and Senate Majority Leader Leader Bill Frist, a Tennessee Republican, also expressed concern about the constitutional implications of the Saturday night raid of Louisiana Democratic Representative William Jefferson’s office in the Rayburn House Office Building on Capitol Hill.
…. Hastert said in his statement that every congressional office contains documents protected by the constitutional principle of the separation of powers. Those protections, and the independence of the legislative branch, “must be respected in order to prevent overreaching and abuse of power by the executive branch,” he said.
The speaker said it “would appear” that Attorney General Alberto Gonzales was aware the Justice Department had entered “constitutionally suspect grounds” in conducting the raid because the FBI suggested in seeking a warrant that it would create special procedures to step around the constitutional issues.
“It is not at all clear to me that it would even be possible to create special procedures that would overcome the constitutional problems that the execution of this warrant has created,” Hastert said.
He said that “since the founding of our republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this separation of powers line in order to successfully prosecute corruption by members of Congress.” Hastert said the materials sought in the search of Jefferson’s office had already been subpoenaed and that “all the documents that have been subpoenaed were being preserved.”
This all fits a pattern.
Gonzales also raised a stir this weekend by suggesting that the government is looking at laws and considering prosecuting journalists for publishing classified information. You haven’t seen that under many administrations but Gonzales’ underlying attitude is that they’re looking into the laws and if they can find a way to do it they will and they think they can.
Now Frist and Hastert are uneasy being on the receiving end of a seemingly new way the executive branch operates. That is: see what possible laws exist and even if parts of them have never seldom or never been used before exercise your powers to the absolute fullest. This has been the case in the warrantless surveillance, signing statements and many other matters.
Most likely result: this will raise more concerns among the Barry-Goldwater-descended Republicans about the growth and solidification of Big Government under the Bush administration.
FOOTNOTE: We inadvertantly deleted this section on former Speaker of the House Newt Gingrich when we quoted the Post story:
Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line “on the edge of a constitutional confrontation,” called the Saturday night raid “the most blatant violation of the Constitutional Separation of Powers in my lifetime.” He urged President Bush to discipline or fire “whoever exhibited this extraordinary violation.”
A CROSS-SECTION OF VARYING OPINION ON THIS ISSUE:
–Glenn Reynolds (who is also an attorney):
The separation of powers argument seems to be pretty weak to me: The actual scope of Congressional immunity under the speech and debate clause is quite narrow (narrower, oddly, than the judicially-created immunities enjoyed by judges and prosecutors) and certainly doesn’t include immunity from search in a bribery case.
At any rate, members of Congress who are offended by an unannounced late-night raid on an office might profitably be asked what they think about late-night unannounced raids on private homes, which happen all the time as part of the Congressionally-mandated War on Drugs.
While I agree with these guys, I must say it makes me wonder why they would protest THIS unconstitutional probing by â€œBig Brotherâ€? upon THEIR civil liberties when these same people are lightening quick on the draw to screw with we PLEEBSâ€™ Constitutionally guaranteed civil liberties. Doesnâ€™t that make you scratch your heads with a curiosity of what we would find if we were to root through all of the drawers and computers of the 535
lawbreakerslawmakers on Capitol Hill? And what about all of the other lawbreakerslawmakers on the state and lower levels? After all, I seem to recall something to the effect of â€œHe who protesteth the loudestâ€¦â€?
–James Joyner looks at the legalities. His conclusion:
This level of bipartisan outrage on the part of Congress is a good thing. The Framers intended for all branches to be intensely jealous in guarding their institutional perquisites and their unity on that issue even in the face of egregious conduct on the part of one of their own is evidence that Separation of Powers is alive and well. In this case, though, I believe they are wrong.
–Americablog: “Funny. GOP House Speaker Denny Hastert and GOP Senate Majority Leader Bill Frist don’t give a damn about the privacy of their constituents. Law and order is what comes first, to hell with your privacy, let the NSA eavesdrop on your phone calls, it’s all for the good of America. And after all, if you have nothing to hide, then what’s the problem?”
–Pirate’s Cove: “In real words, they are complaining that they are being held to the same standards as normal Americans…Well, Dennis, too bad. Congressional members are not exused from the legal system in full. You get a few free passes, but this isnâ€™t one of them, as a federal district judge issued the warrant to search the office of William Jefferson, Democrat, Louisiana. So that is two branches of the Federal government ‘crossing the line….Bush is doing a pretty good job of cleaning both sides of the house of dirty players.”
–Liberty And Justice: “I understand the fact that we should be very careful before we accept raids like this; but we should also fight corruption in our respective governments. At the moment a Rep. is considered a suspect of criminal investigation, an independent judge signs a warrant, it seems logical that the FBI should be able to ‘raid’ that Rep’s office. It is an interesting legal question.”
–Objective-Justice: “I frankly canâ€™t believe that these guys are out there saying they donâ€™t want the FBI to do their jobs. Welcome to schizophrenic America.”
–The Houston Conservative: “As for the general outrage on both sides of the aisle at this “intrusion” into their privileged chambers, perhaps this indicative of the general contempt members of Congress seem to hold for the people as a whole. We are repeated told by those in Congress and in the mainstream media (MSM) that “sunlight is the best disinfectant,” why is this true for some but not for all?”
–TPM Muckraker has a MUST READ post on bipartisan condemnation of the raid. Here’s a small section (boldfaced 4 U):
Forgive my skepticism. Perhaps some members have legitimate Constitutional concerns. But it’s good to consider that other, more personal concerns may be involved. Remember, the Justice Department has a number of investigations targeting lawmakers and staff on the Hill. Various committees and members have received subpoenas for documents and other cooperation, and they’ve been reportedly dragging their feet rather than comply.
Intentionally or not, the FBI’s raid could be read by other lawmakers to mean: if you don’t willingly comply, we’ll come take what we need. In that sense, the raid wasn’t just a hit on Jefferson, it was also a warning shot across the bow of all those facing scrutiny: you could be next.
The executive is not supposed to be able to intimidate the legislature, and while I’m not aware of any evidence that the Bush administration is doing anything more than pursuing a corrupt Congressman in this case, it is possible an administration could utilize the FBI for less savory tasks as well, and Congress is correct to guard its prerogatives against the encroachments of an overzealous executive. On the other hand, between the executive and the judiciary, the nominally superior branch of the legislature has been allowing its powers to erode for decades, so their decision only to stand up for themselves when they’re being investigated for corruption marks an interesting choice for their first place to defend their prerogatives.