Search of Rep. Jefferson unconstitutional?

Great Debates
1

Rep. William Jefferson (LA) has allegedly been nailed for accepting bribes to facilitate a business venture in Africa, an allegation I don’t see much cause to doubt at this point. Yet, to my astonisment, there appears to be some discontent, (mostly voiced by House Democrats), over the search and seizure of incriminating evidence (90 grand wrapped in foil in a freezer, no less) by the FBI.

The counter-allegation appears to be that having the FBI search a Congressional office breaks a long-standing precedent, and threatens the independence of the Legislative Branch. The Executive could use the appearance of a legitimate investigation, say, as a strategy in a partisan vendetta, to spy on or otherwise thwart and threaten political adversaries.

Maybe. In this case, however, it looks like they caught a dirty politician red-handed, and are attempting to be scrupulous in limiting their search only to evidence relevant to the case, using independent investigators to sort the seized materials. Sure, there’s no guarantee of perfect success in that effort, but I think it’s a reasonable compromise, given the apparently flagrant nature of the offense. Am I missing something here? Am I wrong to be more troubled over a Congress, deservedly under seige for widespread allegations of curruption, hiding behind potentially partisan and specious Constitutional arguments, rather than the Separation-of-Powers issues raised in those arguments? Seems to me, if Congress can’t police itself, the FBI is an appropriate entity to get the bad guys. It needn’t be a slippery slope to witch-hunts and more power grabbing by the Executive.

Please, discuss.

2

[QUOTE=Loopydude]
Rep. William Jefferson (LA) has allegedly been nailed for accepting bribes to facilitate a business venture in Africa, an allegation I don’t see much cause to doubt at this point. Yet, to my astonisment, there appears to be some discontent, (mostly voiced by House Democrats), over the search and seizure of incriminating evidence (90 grand wrapped in foil in a freezer, no less) by the FBI.

The counter-allegation appears to be that having the FBI search a Congressional office breaks a long-standing precedent, and threatens the independence of the Legislative Branch. The Executive could use the appearance of a legitimate investigation, say, as a strategy in a partisan vendetta, to spy on or otherwise thwart and threaten political adversaries.

Maybe. In this case, however, it looks like they caught a dirty politician red-handed, and are attempting to be scrupulous in limiting their search only to evidence relevant to the case, using independent investigators to sort the seized materials. Sure, there’s no guarantee of perfect success in that effort, but I think it’s a reasonable compromise, given the apparently flagrant nature of the offense. Am I missing something here? Am I wrong to be more troubled over a Congress, deservedly under seige for widespread allegations of curruption, hiding behind potentially partisan and specious Constitutional arguments, rather than the Separation-of-Powers issues raised in those arguments? Seems to me, if Congress can’t police itself, the FBI is an appropriate entity to get the bad guys. It needn’t be a slippery slope to witch-hunts and more power grabbing by the Executive.

Please, discuss.
[/QUOTE]
From your cite, the search was done pursuant to an (apparently valid) search warrant. To me, that seems to be the end of the discussion. I’ve never heard, nor is there a court case, that a Congressional Office is somehow magically exempt from search. From my quick look, the argument that an investigative agency can’t search a Congressional office seems like complete baloney. I’ll also note that the execution of the search warrant had limits to protect any potential priviledge. I read an article that Van Sustern, et. al. said the opposite, but I honestly don’t see the problem.

3

I guess, having looked around, my suspicion it was more Dems. than anyone complaining about this was unfounded, and I should have paid more attention to my original cite. The concern over abuses appears to be fairly bipartisan.

4

Sounds like some of our representatives follow the belief, “All pigs are equal, but some pigs are more equal than others.”

5

My view is… by the book. You think the Congresscritter is up to no good? You investigate and prosecute by the book. All warrants with dotted i’s and crossed t’s. Treated with the utmost respect and courtesy, but fully investigated and prosecuted.

If a search warrant is enough for the cops to search my underwear drawer, it’s good enough for the FBI to search the offices my tax dollars pay to maintain.

6

Congressmen (and Senators) are exempt from arrest for petty violations while Congress is in session.

This does not, however, give them some carte blanche to engage in whatever scandalous behavior they wish – note the exceptions – but rather to prevent the sort of behavior where some unscrupulous partisan person, let’s call him Carl Roam, might contact local law enforcement and gently hint that it would be convenient if the local Congressman of the opposing party were arrested and held on suspicion of some offense, use your imagination here, Sheriff. The FF were no dummies when it came to crooked political practice!

Beyond that, as a citizen Jefferson is entitled to the protection of the Fourth Amendment:

But from the look of the story it appears that both these provisions were scrupulously adhered to.

Face it, anything’s unconstitutional in someone’s opinion. But I think Hamlet nailed it, and I’m simply expanding on his comments with the constitutional text.

7

If folks like Newt Gingrick and Dennis Hastert are complaining about the search, I’m inclined to believe it’s a good thing.

As Cheesesteak says, do it by the book.

8

Well, thanks, everyone, because I was boggled. As Hamlet and Polycarp rightly point out, there doesn’t appear to be anything unconstitutional about searching the office of a Legislator when law enforcement can show probable cause for suspecting felonious activity. It certainly appears Rep. Jefferson is being investigated for felony bribery. What are Wamp, Hastert, Boehner, Pelosi, et al. so worried about? I just don’t see the

From another cite:

I heartily agree. Sure, this is perhaps (I say “perhaps” because ABSCAM appears to be somewhat relevant) an unprecedented move on the part of Federal investigators, but maybe it’s a tradition of ignoring Legislative malfeasance we need to worry about, not some assault on cherished Constitutional principles.

9

Gah! "I just don’t see the legal basis for objection.

10

[QUOTE=Loopydude]
Gah! "I just don’t see the legal basis for objection.
[/QUOTE]

I don’t think there is one. A “customary” basis maybe, but not a legal one. A Congresscritter’s office is not the Floor…they have no special rights or expectation of rights there.

11

There are indeed some serious separation of powers issues here. The Executive Branch has no authority over Congress. If it were, there is the possibility that an executive could use his police power to intimidate Congress. Similarly, Congress has no power over Presidential personnel (as opposed to Cabinet members that are approved by the Senate). Each branch has privileges that the other may not infringe upon because of concerns of intimidation. Those privileges are a good thing and should be respected.

The concern Congress has with that is not that the FBI is investigating a Congressman, but that the FBI is invading legislative offices. In this case, I’m sure it’s probably done for a good reason, but that’s not always the case. What if, during the House Waco hearings, the FBI needed to raid the House Judiciary Committee’s offices because of a so-called “corruption” investigation? Far fetched, sure, but not out of the question.

Capitol Hill has its own police force and that has jurisdiction over House and Senate offices. The FBI should have probably found a way to ask them to do this.

12

From what I’ve read, Jefferson looks guilty as hell. Appareantly there is/was probable cause, and there was a legitimate search warrant.

If anything, it would SEEM to suggest that no one is above the law (a good thing), and no one has carte blanche to use their rank or office as a way to do criminal things (also a good thing).
It would be idiotic for Democrats to rally round Jefferson, just because of party loyalty. Let him twist in the wind.

13

[QUOTE=Renob]
There are indeed some serious separation of powers issues here. The Executive Branch has no authority over Congress.
[/QUOTE]

Is this an “authority” issue, though? Sure, branches can’t order members of other branches around, or harass them with petty investigations, but Congress can impeach a President, after all. The FBI can investigate lawbreaking, and the Judiciary can see to it crimes are punished, no matter who is breaking them.

14

I don’t think it’s a separation of powers issue. The executive didn’t attempt to exercise any authority of its own over Congress. They suspected that a violation of federal law had been committed by one particular legislator. They collected evidence of this violation and presented that evidence to the judiciary, which found it compelling enough to issue a warrant. All these steps were carried out in accordance with both federal law and the Constitution.

The feds go through the same procedure whenever they want to (legally) search anyone’s office. It’s not an authority issue at all. It’s a “you mean the laws apply to me too?!” issue.

15

There may be separation of powers issues here; I can certainly see a corrupt administration using the FBI as a weapon against unfriendly Congressmen.

But the Democrats should have let this go, because even if they do have a legit beef, speaking up about it now just amounts to defending Jefferson. He’s obviously guilty, and since the Democrats are going to be running against the GOP culture of corruption this fall, the smart move would have been to unanimously and unambiguously condemn Jefferson’s actions and demand his resignation. Failing to do so just gives their opponents tu quoque material.

16

I wonder why the FBI didn’t ask the Capitol Police to execute the search, though. It is their jurisdiction. And it seems that the Capitol is not the FBIs jurisdiction. It is true that Congress can impeach a President, but that was how the Founders wanted it. Congress was supposed to be somewhat more powerful than the President. Unless the FBI believe the Capitol Police are too crooked or too incompetent to execute the search, I would rather they defer to them.

17

[QUOTE=saoirse]
I wonder why the FBI didn’t ask the Capitol Police to execute the search, though.
[/QUOTE]

Hard to say, but perhaps they were afraid the time it would take, or red tape, etc. might allow Jefferson an opportunity to stash the evidence where the FBI couldn’t find it. Then again, Congressmen seem to feel their offices are sacrosanct, so perhaps Jefferson would have felt no hurry to move the cash out of the freezer.

Anyhoo, this really has created quite a stir. Hastert’s complained directly to the President (cite). Meanwhile Justice insists perhaps they wouldn’t have broken precedent if Jefferson had not ignored subpoena nine months before.

Maybe I was too incredulous about the Constitutional issues here. Then again, seems like a Legislator could easily hide behind technicalities and use a Congressional office as a criminal haven should this investigation not stand.

18

If Jefferson thinks the search was improper he can move to exclude the evidence obtained from it. That way, there would be an independent determination as to whether or not the executive and the judiciary acted properly.

From what I’ve read, the warrant was properly issued and there isn’t anything wrong with what the FBI did.

The objection that the executive could use this method to harrass members of Congress is unfounded unless there is pretty widespread collusion between the executive and judiciary. The executive can always use its police powers in an unjustified manner unless there is a check by one or both of the other brances. That’s why checks were built into the Constitution. In this aspect of things, members of Congress are on a par with the rest of us except for the special cases of being on the Floor or on the way to a session or committee meeting.

19

As another poster has suggested, I don’t think Jefferson can expect much help or support from Democrats. He single-handedly destroyed one of thier main political weapons for the 2006 election season.

20

[QUOTE=Renob]
There are indeed some serious separation of powers issues here.
[/QUOTE]

But “separation of powers” in and of itself isn’t in the constitution. The specific clause that people seem to be citing is the “speech or debate” clause of Article 1 section 6 (emphasis added):

But it’s beyond me how this can be applied as a blanket protection of a Congressional office. Is there any jurisprudence regarding that clause that we should know about?