The Arrogance of Congressmen and Senators Part II

They still just don't get it:

In a rare bipartisan action, House Speaker J. Dennis Hastert and Minority Leader Nancy Pelosi demanded yesterday that the Justice Department immediately return documents that were seized when federal agents raided the office of Rep. William Jefferson (D-La.) as part of a bribery probe.

Noting that "no person is above the law, neither the one being investigated nor those conducting the investigation," Hastert (R-Ill.) and Pelosi (D-Calif.) asserted that the Justice Department must cease reviewing the documents and ensure that their contents are not divulged. Once the papers are returned, "Congressman Jefferson can and should fully cooperate with the Justice Department's efforts, consistent with his constitutional rights," the statement said.

The demands by Hastert and Pelosi further escalated a separation-of-powers conflict between Congress and the White House. The raid on Jefferson's office last weekend was the first time that the FBI has executed a search warrant on the Capitol Hill office of a sitting lawmaker.

The Justice Department initially signaled an unwillingness to return the documents. But White House officials are concerned about the vigorous and repeated complaints of the congressional leaders and have pressed the Justice Department to find a way to placate Congress and defuse the controversy, according to a department official.

Many Republicans and Democrats contend that the unprecedented raid on a congressional office was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government, which is meant to shelter lawmakers from administrative intimidation. Legal scholars are divided on this issue, however, and some said yesterday that the raid does not violate the letter of the Constitution or subsequent rulings by the Supreme Court.

The FBI is investigating allegations that Jefferson, who represents flood-ravaged New Orleans, took hundreds of thousands of dollars in bribes in exchange for using his congressional influence to promote high-tech business ventures in Africa. The eight-term House member has denied wrongdoing and told reporters this week that he intends to run for reelection in November. Jefferson also rejected a call by Pelosi to temporarily vacate his seat on the House Ways and Means Committee, the chief tax-writing panel, pending the outcome of the criminal investigation.

House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) announced yesterday that he will hold a hearing on the "profoundly disturbing" questions that he said the Justice Department's actions have raised.

A Justice Department official, who spoke on the condition of anonymity because of the sensitivity of negotiations, said after the Hastert-Pelosi joint statement was released that "the department will not agree to any arrangement or demand that would harm or hurt an ongoing law enforcement investigation."

"We are in discussions with them on something that would preserve law enforcement interests while also allaying their institutional concerns," the official said. "But our position is that we did it legally and we did it lawfully, and we're not going to back away from that."

If you think that's bad, check out this story:

The House Judiciary Committee has just announced a rare recess hearing, set for next Tuesday, entitled, "RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?"

I swear these guys must live in some kind of alternate universe because almost no one outside of the Hill agrees with them. See here, here and here (in the interests of fairness, here's one idiot that agrees with Hastert and Pelosi). Not to mention, as I pointed out in my post yesterday, their separation of powers of argument is pathetic:

Given that the FBI obtained a warrant, what would the legal theory be that the search was unconstitutional?

I don't think the Fourth Amendment provides such an argument. If the government can execute a warrant at a newspaper, or at a lawyer'’s office, why not a Congressional office? Of course, Congress could pass a law prohibiting searches of Congressional offices, Cf. The Privacy Protection Act, but they haven'’t done so.

A more likely theory would be the Speech and Debate clause, Art. I, 6, cl. 1:

The Senators and Representatives . . . 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.

Given that executing a search warrant involves neither an arrest nor questioning, it would seem to me that the Clause isn'’t applicable. Further, Gravel v. United States, 408 U.S. 606, 626-27 (1972), seems to suggest that Congress is not generally exempt from criminal process under the Clause:

Article I, 6, cl. 1 . . . does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If [the conduct under investigation] would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation.

I thought I could not be more disgusted with Congress after all their recent ineptness, but Congress has found a way to out do themselves. Why am I not surprised that no one trusts Congress these days.

P.S. While I spent much of this post yet again ripping Congressmen and Senators for their arrogance, I would like to commend one, Senator John Warner, who said the following today, "I think it's very important that Congress be treated no differently than the average citizen when it comes to criminal matters." Thank you Senator Warner. I just wish more of colleagues agreed with your point of view.