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May 24, 2006
Subpoenas Not Enough?

The corruption case of William Jefferson took a strange turn yesterday when several Republican members of Congress objected to the execution of a subpoena on the uncooperative subject of the investigation. House Speaker Dennis Hastert questioned the constituionality of the FBI search, and House Majority Leader John Boehner predicted that the Supreme Court would have to decide the issue:

Justice Department and FBI officials yesterday vigorously defended a weekend raid on the Capitol Hill office of Democratic Rep. William J. Jefferson (La.), arguing that the unprecedented tactic was necessary because Jefferson and his attorneys had refused to comply with a subpoena for documents issued more nine months ago in a bribery investigation. ...

House Speaker J. Dennis Hastert (R-Ill.) complained directly to President Bush yesterday about the FBI raid, while House Majority Leader John A. Boehner (R-Ohio) predicted a constitutional showdown before the Supreme Court.

"My opinion is that they took the wrong path," Hastert told reporters after his meeting with Bush in the White House. "They need to back up, and we need to go from there."

This can't be the same Congress that issues subpoenas for all sorts of probes into the executive branch and the agencies it runs. Does Congress really want to establish a precedent that neither branch has to answer subpoenas if issued by the other, even if approved by a judge -- which this particular subpoena was?

The FBI had a valid subpoena for the information in Jefferson's office. He refused to provide it. The FBI had little choice but to go in and take it, and from the description given in the Washington Post, they took extraordinary care not to confiscate legitimate data relating to his legislative responsibilities.

Congress already has enough problems with corruption and scandal without adding even more arrogance to top it. If the leadership wants to argue that their status as elected officials somehow gives them the ability to disregard subpoenas and court orders, then the American people may want to trade that leadership to ensure that Congress understands that it operates under the same laws as the rest of us. Hastert and Boehner do not argue against an imperial presidency, but rather they are arguing for an untouchable political elite, where our elected officials risk nothing by taking bribes and selling their votes to the highest bidder. After all, the evidence of those transactions will almost always reside in their offices -- and if they can ignore duly executed subpoenas and search warrants, then they can sell themselves at will.

Hastert and Boehner had better reconsider this fight. Not only is it a loser legally, but it's also political suicide. They shouldn't need the Supreme Court to laugh them into oblivion to comprehend the magnitude of this mistake.

UPDATE: Dafydd at Big Lizards takes the example to their logical conclusions. He also notes the clause of the Constitution that members of Congress from both parties are invoking:

United States Constitution ~ Article I ~ § 6 ~ ¶ 1:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. 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.

In the strict constructionist view that the GOP supports, this should mean what it says: members cannot be arrested while in attendance of a session or while traveling to or from said session. They also cannot be prosecuted for their speech while in session. That's it. It's a very narrow immunity, and it has to be in order to preserve public accountability for elected officials.

I find it troubling and not just a little hypocritical that Hastert and Boehner now want to use a "living Constitution" model in order to defy valid court orders.

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Posted by Ed Morrissey at May 24, 2006 6:00 AM

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