Monday, March 31, 2008

Supreme Court declines to intervene in Jefferson case.

The U.S. Supreme Court declined today to involve itself in the question of whether evidence the FBI seized from the Congressional Office of Congressman William Jefferson (D-LA) can be used when Jefferson is tried on corruption charges later this year.

WASHINGTON (CNN) -- The Supreme Court on Monday let stand a lower court decision that allowed a congressman to review and remove documents seized during a controversial FBI raid of his office.

Rep. William Jefferson, D-Louisiana, said he was the victim of an overly aggressive raid of his Capitol Hill offices in May 2006. He was indicted 13 months later on public corruption charges.

The investigators' raid of Jefferson's office sparked a furor among congressional leaders, including Republicans, who argued the search violated the Constitution's separation of powers and legislative privilege.

The FBI did not warn leaders about the raid before they searched Jefferson's office.

The high court without comment let a lower court ruling stand that allows Jefferson -- with court oversight -- to review the seized documents and take out those that are privileged.

I can only imagine my Congressman, Rick Renzi (R-AZ), also under indictment, slapping his forehead with his palm at today's ruling that in effect bars the use of documents seized from a Congressional Office in a corruption trial and muttering, "Dang! THAT'S where I should have kept it!"

Now, there is no question that with or without the evidence taken from the office, Jefferson stands a high probability of joining Duke Cunningham and Bob Ney in prison. The FBI still has plenty of evidence-- most notoriously $90,000 in cash seized from a refrigerator at the Congressman's home-- with which to build a case against Jefferson.

The lower court ruling is essentially correct, in my opinion. And the reasons are a lot deeper than William Jefferson, Rick Renzi or anyone else.

At issue is the scope of the 'speech and debate' clause regarding separation of powers in the U.S. Constitution and whether it bars the FBI, an agency within the executive branch (the FBI director reports to the Attorney General, who reports to the President) from executing a search warrant on the official offices of a member of Congress.

The executive and legislative branches have ever since the Constitution was ratified been in a struggle for power (one refereed by the courts). At times one has prevailed, at times the other. Under the Bush administration however, we've seen a great expansion of executive power, with the President often choosing to simply ignore laws passed by Congress (even, far more often and far most specifically than was ever done in the past) issuing 'signing statements' when signing laws saying that in effect the laws don't apply to members or agencies within the executive branch. But when the FBI raided Jefferson's office, in effect a raid on Congress itself, it was a clear attempt to put executive control (of a putative sort) on Congress itself. In the history of the Republic, there have been a lot of Congressmen convicted of a crime while in that office, but in not a single one of those cases did investigators believe there was any reason to raid a Congressional Office (or likely realized the Constitutional peril if they tried.)

As a matter of principle, I prefer a strong legislative branch to a strong executive (and yes, I felt the same way philosophically even when the shoe was on the other foot in the 1990's and I felt that Congressional Republicans were using their legislative power to conduct investigation after investigation after investigation.) A strong Congress, no matter how repulsive their positions and actions may be, is not going to move us in the direction of dictatorship. Even when Congress passes laws restricting personal freedoms, as we've seen the past few years (especially between 2001-2006), it is often a weak and spineless Congress following the request and lead of the executive branch.

That does not mean that I feel there should be a 'safe' zone where any criminal can stash evidence and escape prosecution. The whole idea makes the idea of justice a farce. Suppose, for example, that we had a law saying that the police could not search inside a cookie jar. Then guess were all the criminals would keep the evidence? In fact by pushing this confrontation where they did and failing the FBI almost is inviting the next corrupt Congress member to keep a file cabinet marked, "None of your business" in their office, smugly assured that even if it is carted off it can't be used in a trial.

The solution would be for Congressional leaders and members of the Justice Department to negotiate a plan for how such searches should be handled in the future (such as having the Capitol Hill Police, a branch of Congress, do the actual searching). The breach between the present administration and Congress has gotten so deep though that this might be something on the agenda for the next administration.


wstachour said...

I agree that the strong legislature seems a healthier situation for us than a strong executive. Not least because it's more plainly democratic, since the single executive necessarily fails to represent the views of at least half the citizenry.

I don't know that I gave this so much thought before W came to power. But this usurping of power--or shedding of cross-checking accountability--has been an eye-opener.

I still wonder what it will take to restore the office--or indeed if it can even be done.

Eli Blake said...


There have been in the past situations in which a legislative body either abdicated their role and handed the executive absolute power or became so weak and corrupt that it was possible for a military strongman to overthrow them in a coup, and it never turned out well. That includes the first Settlement on January 16, 27 BC when the Roman Senate gave Octavian far reaching and uprecedented powers, the complicity by members of the government in the coup that brought Napoleon to power in France on Nov. 9, 1799, and most notoriously the Enabling Act of March 23, 1933 (in a major coup, passed by the Reichstag and signed by President Hindenburg, but giving Adolf Hitler the right to enact legislation without having to ask for the approval of the Reichstag.)