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July 23, 2006
Not Learning To Quit While Behind

Dennis Hastert still hasn't learned when to quit. The House speaker told Fox News Sunday that he may appeal an order by a federal judge that allows the FBI to begin a review of records seized through a search warrant from Rep. William Jefferson's office:

House Speaker Dennis Hastert said Sunday he may challenge a judge's order allowing FBI agents to examine documents seized at a Louisiana congressman's Capitol Hill office in a bribery probe.

Hastert said he believed Rep. William Jefferson, D-La., was "in big trouble" and that the House would not be joining in support of Jefferson himself. But he said the House separately might seek to make clear its position that the Justice Department cannot randomly and wantonly search lawmakers' offices.

"The gentleman from Louisiana is in big trouble, as far as I'm concerned. And we're not trying to protect him," said Hastert, R-Ill.

"But there has to be a procedure for the Justice Department to come in and start just searching any congressman's office," he said. "We may take a fine line depending on how the negotiations are. There is a constitutional division there that we have to protect."

Who is Hastert trying to kid? The "constitutional division" doesn't exist. The FBI attempted to subpoena the records from Jefferson, which would have eliminated the need to conduct the search. Jefferson and the House counsel decided to defy the subpoena. After nine months of fruitless negotiation, the FBI requested and received a search warrant from a federal judge to seize the records instead. The records seized do not relate to legislative work but to financial records in a bribery investigation.

The judge in question ruled that the FBI's execution of the search warrant violated no law and certainly did not damage the Constitution. Judge Thomas Hogan wrote that Hastert and Jefferson sought to turn Capitol Hill into a "sanctuary" for criminal activity. Apparently Hastert still doesn't comprehend the rather clear language in Hogan's ruling:

If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Members of Congress to frustrate investigations into non-legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from prosecution.

Why does Hastert remain so determined to fight this through the federal appellate courts? Does he really believe that a federal judge on any level will rule that the FBI does not have the right to execute a search warrant on a Congressional office -- when that warrant has the approval of a federal judge? Does Hastert expect the judiciary to suddenly declare its entire branch subservient to Congress? If Hastert wins, a federal court would have to rule that federal judges have no authority to approve search warrants except through "procedures" that Congress would define for itself, making Capitol Hill the only place where a duly executed legal order has no weight.

Balderdash -- and dangerous balderdash at that.

Will someone please explain to Dennis Hastert that the only privilege granted to Congress is that contained within the Constitution, which in this case does not apply, and outside of that they get no special relief from the same laws that apply to the rest of us? And do it soon, because Hastert has become an embarrassment in his zeal to create a haven for bribe-takers on Capitol Hill. Otherwise, Republicans in Congress should begin to consider some special "procedures" that will remove him as Speaker in the next session, if not sooner.

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Posted by Ed Morrissey at July 23, 2006 3:58 PM

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