June 19, 2006 Monday

HEADLINE: Constitutional Swag, Congressional Privilege

We are in the midst of a crisis with few parallels in our nation’s history, but you would never know it by speaking with most Members of Congress. As Congress blissfully occupies itself with bread-and-circus politics such as flag-burning and same-sex marriage amendments, existing constitutional principles are being eviscerated.

Over the past six years, the Bush administration has made unprecedented intrusions into Congressional authority without any significant response, or even inquiry, by Congress.

The framers anticipated that each branch jealously would covet each other’s power. Accordingly, the Separation of Powers doctrine is based on the Madisonian principle that “ambition must be made to counteract ambition.”

The vanishing role of Congress over the past six years is due in equal part to the ambition of President Bush and to the lack of counter-ambition by Congress. In the absence of any significant oversight, Congressional powers have become a form of constitutional swag – unclaimed constitutional powers that can be lifted in broad daylight, much as the mob once treated cargo at Idlewild Airport in New York.

For example, Members of both chambers gave Bush a standing ovation during his previous State of the Union address when he proclaimed that he would continue to reauthorize warrantless domestic surveillance – a program that constitutes a clear violation of laws passed by Congress. Now, rather than forcing such unlawful operations to comply with the law, Congress appears to be moving to change the law to fit the unlawful operations.

Senate Judiciary Chairman Arlen Specter (R-Pa.), who, to his credit, once criticized the program as unlawful, is now proposing a bill that would legislatively give the president this authority while effectively protecting the administration from judicial review of its possible criminal conduct.

In this context, the raid on the Capitol Hill office of Rep. William Jefferson (D-La.) hardly could be a surprise. However, Congressional leaders clearly were embarrassed by the public disregard, if not contempt, shown by the Justice Department. It was the equivalent of lifting swag from trucks in front of normally cooperative security guards. Some niceties must be observed.

The Justice Department must have known that such a raid was entirely unnecessary to secure this material. The U.S. Attorneys’ Manual expressly advises its attorneys to go through Congress and that “bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.”

Notably, when the FBI wanted to search Jefferson’s car in a Congressional garage, Capitol Police secured the vehicle, obtained the keys from Jefferson and ultimately assisted the FBI in towing the vehicle. When the Justice Department expressed concern over the status of some documents in Jefferson’s office, the House counsel arranged for the material to be secured and locked away, to the stated satisfaction of the prosecutors.

The raid, therefore, simply was a choreographed muscle play by the executive branch, leaked in advance to the media for maximum public exposure. It is manifestly untrue that the government “exhausted all other reasonable methods to obtain these records,” as claimed in the FBI affidavit. Putting aside the demonstrated willingness by Congress to secure any material, the government could have secured an order of contempt if Jefferson refused to comply with a subpoena.

It is important to note that this search was sought to determine if charges should be brought – a justification that could support a search under hundreds of different alleged federal crimes. (Notably, under federal law, the government is barred, except in very narrow exceptions, from executing such a warrant to search the offices of reporters.)

Many have insisted that the framers never intended to protect Members from bribery prosecutions. Obviously, that is true. In creating protections such as the Speech or Debate Clause, the Supreme Court has stressed that the framers intended “to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.”

Putting aside the insulting manner of the raid, the search itself implicates the Separation of Powers by allowing executive branch officers to rummage through core legislative material looking for incriminating evidence, including copies of 14 computer hard drives.

There has been a considerable effort to cloud such constitutional issues with low-grade cops-and-

robbers rhetoric. No one is suggesting that Members of Congress are above the law. There is a long list of convicted Congressional felons to attest to the lack of such immunity.

Likewise, no one is suggesting that a Congressional office should be like some foreign embassy where incriminating material can be squirreled away by felonious Members. As the Justice Department concedes, Congress routinely has complied with prior requests, and a federal court can order the incarceration of any Member who refuses to comply with a valid subpoena.

Finally, it is irrelevant that a judicial office once was searched, as noted recently by Senate Minority Whip Dick Durbin (D-Ill.). Durbin was presumably referring to the search of the chambers of federal judge Robert Collins in a 1992 bribery investigation. However, unlike Congress, the framers opted not to give either the judicial or the executive branches an express privilege under Article II or III. Rather, the courts established privileges as a matter of judicial interpretation.

Moreover, the Collins search only illustrates the brutish tactics used in this case. With Collins, the Chief Judge of the Fifth Circuit was given prior notice, a circuit judge was allowed to supervise the investigation, and Collins was allowed to be present during the search.

In the Jefferson search, the FBI conducted a Saturday night raid without notice, and they threatened the Capitol Police that they would break into the office if they were not given immediate access. Both the House counsel and Jefferson’s personal counsel were barred from being present, and the Justice Department told the media before it informed House leadership of the raid.

The continued comatose state of Congress, even after the Jefferson raid, suggests that the flow of constitutional swag from the legislative to the executive branch will continue unimpeded. The Specter bill suggests that Members will now help load the swag onto trucks if only to claim some role in governance. While defended as an act of “interbranch comity,” it is more dark comedy for a Congress that is fast becoming a parody of itself.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. In addition to testifying on the Jefferson raid, he has testified against the National Security Agency operation in Congress and is lead counsel in a criminal case that is seeking information on the operation.