By nothing more than dumb luck, the Republican-controlled Congress—lambasted for the junkets, earmarks, and “culture of corruption” that have aligned to produce the lowest approval ratings in memory—was handed a shot at some desperately needed redemption. All its leaders had to do was make the right choice between condemning the rankest corruption and displaying an outsized arrogance. Guess which one they chose?
To learn all you need to know about their ethics and judgment, look no farther than their outraged—and outrageous—reaction to the FBI’s execution this past Saturday of a court-authorized, highly deferential search warrant at the Capitol Hill office of Rep. William J. Jefferson (D., La.).
According to a sworn affidavit from an FBI agent, Jefferson was caught on videotape last summer accepting a $100,000 bribe from a government informant. He is said to have told the informant that the cash was needed to pay off Nigerian officials in a corrupt business deal. A few days later, however, the FBI searched Jefferson’s home and found $90,000 of the money in his freezer.
The investigation of Jefferson has been going on for over a year. Two people (one a former Jefferson aide) have already pled guilty to bribing him. Meanwhile, one of Jefferson’s staffers told the FBI that his boss had been maintaining documentary evidence relevant to the corruption investigation in his congressional office. As the Justice department explained to the judge when requesting permission to search the office, prosecutors tried to obtain the evidence by other legal avenues—including by grand-jury subpoena—but were frustrated by Jefferson’s obstinacy.
So the choice was either to seek judicial permission to search the office, or to let Jefferson, a public servant, get away with using the public’s office space to obstruct the public’s investigation of his violation of the public’s trust. The investigators decided to seek the warrant, just as they should have. A federal district judge authorized the search, just as
he should have, following well-settled law that required him to find: a) that there was probable cause of a crime, b) that there was probable cause to believe the evidence was located in the office, and c) that the warrant set forth a particularized description of what could be seized, so that the search would focus on the alleged crime and not become a fishing expedition.
In requesting the warrant, the Justice department appears to have exhibited extraordinary respect for Congress as a coequal branch of government. It designed elaborate procedures to ensure a narrowly targeted search. The agents and prosecutors responsible for the investigation were not allowed to participate. The search was instead conducted by independent teams, uninvolved in the corruption investigation, who carefully reviewed all seized items to make sure that materials having nothing to do with the alleged crimes were either left alone or quickly returned to the House of Representatives.
There should have been little for leaders of Congress to do but applaud. Instead, House Speaker Dennis Hastert, Minority Leader Nancy Pelosi, and Majority Leader John Boehner led a chorus of disgruntled legislators in crying foul, closing ranks around an apparent felon, and raving incoherently about a supposed separation-of-powers violation.
This incredibly tin-eared performance was based on an extravagant construction of the Constitution’s speech-and-debate clause (Article I, Section 6). Congress evidently reads this clause as giving its office space blanket immunity from any investigation by the executive branch—even with court authorization—in connection with any crime, no matter how heinous.
But the Constitution says no such thing. While it does provide protection for legislators and the legislative process, it expressly contemplates that members of Congress may be arrested and prosecuted for felonies (as well as for treason and any “Breach of the Peace”). And though it grants Congress an important evidentiary privilege, the resulting immunity is limited: Legal proceedings against members, including criminal prosecutions, may not be premised on “any Speech or Debate in either House.” The federal courts have long interpreted this protection as transcending commentary on the floor. It covers the entire “sphere of legislative activity,” including such matters as committee reports, resolutions, the act of voting, and all things done by a member of
Congress in relation to legislative business. It does not, however, cover non-legislative activities, such as taking bribes.
Further, it is a protection from the
use of speech-and-debate information against members; it is not immunity from being investigated in the first place. The executive branch should not intentionally set out to obtain privileged materials, which is obviously why the Justice department designed such an extensive prophylaxis for the Jefferson search. But if it does obtain them, the privilege means the materials cannot be used against a member, not that the entire investigation is tainted or that properly seized evidence of crimes must also be suppressed.
This generous protection is manifestly inadequate to satisfy the carping congressional leadership. They claim that Congress should have supervised any search—which would, of course, have been an actual separation-of-powers violation, since investigation is an executive function. They also claim that
all seized items should be given back to Congress. That is, the public’s investigation of a public official’s criminal acts should be sacrificed—far beyond what the Constitution calls for—in order to salve Congress’s self-esteem.
This is delusional. Congress had a chance to come out swinging against corruption—to demonstrate, amid a slew of tawdry scandals, its recognition that public officials are subject to the same laws as ordinary citizens. The Republican leadership in particular should have seen an opportunity to redirect attention from its caucus’s lapses to a Democrat’s crude criminality. They chose, instead, to rally around an apparent swindler. We can think of 100,000 reasons why this will be remembered as an unparalleled blunder.
