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May 24, 2006
Post: Hastert, Boehner Have No Clue

The Washington Post provides an analysis of the Congressional privilege asserted by Speaker Dennis Hastert and Majority Leader John Boehner which finds no grounds for their objections to the search warrant executed by the FBI earlier this week. In fact, as Charles Lane points out, the Supreme Court has repeatedly made clear that the Speech and Debate clause of the Constitution cannot shield members from legitimate investigations into corruption:

"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University's Fletcher School of Law and Diplomacy.

The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.

Both the search warrant for Jefferson's office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers -- and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.

But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.

"It's really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don't see any constitutional principle here."

It increasingly appears that the only principle at stake in this debate is the silly pursuit of any and all privileges that any tradition might grant legislators. The assertions by Congressional leadership would set lawmakers above the laws they impose on the citizens of the nation and ensure that they remain safe from detection and accountability of corruption. That would guarantee an explosion of bribery and schemery on Capitol Hill, fueled by our tax dollars and protected by a ridiculous interpretation of the Constitution.

If leaders of either party believe that the American electorate would stand for such an assertion of privilege, then they have overstayed their term on Capitol Hill and left rationality and common sense behind. They had better start understanding that subpoenas approved by judges apply to all citizens, and that when the respondent refuses to cooperate with a subpoena, law enforcement will apply it nonetheless.

In this case, the assertion of privilege has not only been legally bankrupt, but more so a strain of political stupidity that simply boggles the mind. The Democrats have spent the last few months foolishly trying to paint Washington corruption as a strict GOP franchise. When Jefferson's bribery gets spectacular coverage, what does the Republican leadership do? Do they keep quiet and let the media report the case itself? No! They leap to falsely accuse the FBI of powermongering and the White House of violating the Constitution. Not only are both charges baseless, but now Hastert and his crew have made themselves the proponents of protecting corrupt lawmakers from justice. Instead of allowing Jefferson to become the new face of corruption, they have distracted everyone by making themselves the new faces of arrogance and ignorance.

If the GOP loses the House in November, they should look back at this week and draw the appropriate conclusions.

UPDATE: Of course, now they want Justice to return the evidence collected by a valid subpoena:

The constitutional clash pitting Congress against the executive branch escalated Wednesday as the Republican and Democratic leaders of the House demanded the immediate return of materials seized by federal agents when they searched the office of a House member who is under investigation in a corruption case.

The demand, by Speaker J. Dennis Hastert, Republican of Illinois, and Representative Nancy Pelosi of California, the Democratic leader, underscored the degree of the anger generated among members of both parties on Capitol Hill by the search on Saturday night at the office of Representative William J. Jefferson, Democrat of Louisiana, who has been accused of accepting bribes.

"The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years," Mr. Hastert and Ms. Pelosi said in a rare joint statement.

The correct answers to the assertions in the latter paragraph are no, no, no, and the lack of such a search warrant over that time does not make search warrants illegal. At least we have bipartisan unity on stupidity and base arrogance, if that can be seen as an improvement.

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Posted by Ed Morrissey at May 24, 2006 10:30 PM

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