New at Reason

David Weigel | May 31, 2006

Jacob Sullum asks why Congress's respect for privacy extends to Rep. William Jefferson and no further.

Comments

|5.31.06 @ 2:01PM|#

It seems to me that, except to the most ardent supporters of our omnipotent Leaders, the arguments Pelosi & Hastert spouted out are self-evidently invalid. Fine article, but eminently unnecessary. It's not as if there was a cloud of confusion surrounding this issie---the Congresstwats are interested in protecting their own turf, but not anyone else's. End of story. Kudos, Sullum, for taking the time to write this, but, uh, no shit.

|5.31.06 @ 2:36PM|#

I think Jacob misses the point of the separation of powers argument. He writes, "The most plausible concern on that score is that confidential information related to Jefferson's legislative duties could have been compromised."

That's not really the main concern. It's not about privacy or confidentiality. Lord knows, the Congressional leadership hasn't been much of a friend of that principle since 9/11.

The issue is, indeed, the legislative branch protecting its turf. But contra the loaded dogfight example, or Evan's comment, there is nothing wrong with a branch of government that is charged with checking and balancing another branch seeking to protect its turf against intrusion by that branch.

Part of the genius of our Constitutional system is that it puts that inevitable competition and turf-protecting of government in the service of liberty. It doesn't matter that Hastert is doing so for dirty reasons that may or may not be hypocritical. Some defense lawyers do it for the money, and get bad guys off. It doesn't matter, because that motivation just makes the attorney more zealous in the pursuit of a defendant's rights.

Congress issues subpoenas all the time, and executive branchers stonewall and ignore them all the time. Then they go to court, and there's a big fight, and sometimes the information comes out, and sometimes it doesn't. If your answer to this dilemma is to allow the Sergeant of Arms of the Senate to get warrants and take what he wants out of the White House (or Pentagon, or OEOB), you're crazy. And if you think that the answer to Jefferson's stonewalling of the subpoena is to send the FBI into the Capitol (or Rayburn Building, or Cannon), you're just as crazy.

Hastert and Pelosi's "compromise" is anything but. It's a demonstration by the Executive Branch that it has to recognize Congress's authority, its status as a separate and equal power.

|5.31.06 @ 2:45PM|#

Where I'm really at a loss here is why the Congress isn't ejecting Jefferson immediately. He was caught on videotape accepting a $100,000 bribe to influence his vote in the Congress.

And while I appreciate the desire to have a complete picture to present to a jury, I'm also puzzled as to why the FBI felt that it was necessary to give Jefferson and his fellow travellers the opportunity to hide his misdeeds behind a Constitutional smokescreen. They had enough with that videotape to win a conviction, no?

|5.31.06 @ 3:00PM|#

I don't think this is really that big of a Constitutional issue. The Speech and Debate Clause protections don't extend to the commission of crimes by individual Congressmen. The only lingering issue that does matter was the taking of documents that weren't related to the crime in question. That, arguably, could be considered an interference with the legislative process (maybe a "legislative privilege" :) ). Though the care taken to isolate the review of those documents to people not involved in the investigation was probably sufficient to protect the interests of Congress in that regard (an arguable point, of course). As I've said before, this type of situation can very well be a big problem, and I share joe's appreciation of internecine fighting--I just don't think this particular case rises to the level of a Constitutional crisis.

Here's a fact situation to consider: If Senator Evil shot a tourist on the Mall, ran into the Capitol, and joined a debate, could the FBI chase him into the Capitol building and arrest him on the floor of the Senate without the permission of the Congress?

|5.31.06 @ 3:03PM|#

And they found the cash wrapped in tinfoil in his home FREEZER, for God's sake! (Talk about cold cash.)

Perhaps joe (or someone) can explain why law enforcement agents, armed with a court ordered search warrant, cannot search the office of a member of Congress who is suspected of committing a serious crime, notwithstanding the Constitutional arguments about separation of powers.

It seems likely that if he had murdered his wife and he were holed up in his office to avoid arrest, no one would challenge the right of the cops to go in and arrest him (or would they?). The only difference here is the level of violence of the crime.

Dave W.|5.31.06 @ 3:08PM|#

They had enough with that videotape to win a conviction, no?

No, because the videotape presumably shows no "qiod pro quo." We are all convinced here at HnR that bribery requires a quid pro quo. Under our view, Jefferson is innocent (although we don't like to admit that part).

Dave W.|5.31.06 @ 3:09PM|#

And they found the cash wrapped in tinfoil in his home FREEZER, for God's sake! (Talk about cold cash.)

There is nothing neccessarily illegal about this.

What is illegal is taking cash in exchange for a quid pro quo. It is unclear whether Jefferson did that or not, but that issue has nothing to do with freezers.

|5.31.06 @ 3:14PM|#

Rabbitt, "Perhaps joe (or someone) can explain why law enforcement agents, armed with a court ordered search warrant, cannot search the office of a member of Congress who is suspected of committing a serious crime, notwithstanding the Constitutional arguments about separation of powers."

I just did. Why don't you try reading it again?

|5.31.06 @ 3:29PM|#

Is it really surprising that Congress is putting forth rationalizations for sweeping Congressional privilege and immunities, when we have, by and large, swallowed the "unitary executive" theory hook, line and sinker?

The neo-conned Republicans want an unaccountable, fascist dictatorship, and the democrats are only too happy to ride their coat-tails, hoping that their day at the controls will come...

|5.31.06 @ 3:29PM|#

As far as the gory posulates about homicidal Congressmen, there is an easy answer; exigent circumstances exist when there is a threat to life and limb. Even in these cases, I would expect the FBI to defer to the Capitol Police if circumstances allow, rather than storming the office themselves.

For the reasons I outlined above. That Crusader Rabbit is rereading.

So let's fix the example; Congressman Evil (R-Texas) is seen by a dozen clergymen having their group photo taken for Honesty Magazine, stealing an ice cream cone from a little girl and walking in to the Rayburn Building with it. Should an ATF agent who say the whole thing walk in behind him and start rummaging through the fridge of the Armed Services Committee breakroom, without asking permission?

The answer is no. The executive branch should not cross that line. The ATF agent should ask either the committee staff, or the Capitol Police, for permission.

Sometimes this doctrine mmight allow a guilty Congressman to escape prosecution, leaving only the voters to determine if he will continue to hold the office. Sometimes your local cops will fail to find evidence in crime they are investigating because they didn't have enough evidence for a warrant. So be it; there are larger principles at stake, even if violating them in the present case wouldn't be the end of the world.

|5.31.06 @ 3:43PM|#

joe,

But what if the Congressman does something to frustrate the president's acquisition of new powers? Then it's off to Gitmo, I say.

|5.31.06 @ 3:44PM|#

Article I, Section 6

"They 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."

If bribery is a felony, I would think the search completely legal.

Congress has the legislative power, a power great enough to protect itself from an over-reaching executive. It has as well the power to impeach civil officers. If Congress is too weak, too divided or too tremulous to use those powers no separation of powers argument can save them from being trampled on by the executive.

A Congress confident in both its power and the justice of its cause would have immediately countered the executive, say by compelling Gonzales to immediately explain himself before a committee and, if he refused to appear, citing him for contempt and subsequently impeaching him in the House and trying him in the Senate.

|5.31.06 @ 3:48PM|#

What is illegal is taking cash in exchange for a quid pro quo. It is unclear whether Jefferson did that or not, but that issue has nothing to do with freezers.

Actually it does. The bills were marked by the FBI which is PROOF that Jefferson took the money for something he clearly believed he was going to do on behalf of whoever it was he thought the agents represented. The bills are evidence of a bribe. He then hid the money in his freezer. Hiding evidence is a crime.

You know, this was also the same guy that made Katrina rescue workers help him get to his New Orleans home in order to retrieve his personal safe. I'll bet this little felon was just a-shittin' his pants when he came to the realization that the money (allegedly $400,000.000) he took illegally might very well be taken by some other little felon looting his house. Resourses meant to save people, not only wasted their time saving his ill-gotten gain, they ended up getting stuck, resulting in even more rescue efforts being diverted to the task of unstucking them.

Jefferson lied; people died.

Jefferson should be charged with murder.

|5.31.06 @ 3:48PM|#

I didn't understand the separation of powers argument either, at least as joe lays it out.

The argument is that no law enforcement agency, even with probable cause and a duly attained warrant, can search Congressional grounds? Congress isn't subject to enforcement of laws they pass?

I must not be understanding the argument ...

|5.31.06 @ 3:49PM|#

What is illegal is taking cash in exchange for a quid pro quo. It is unclear whether Jefferson did that or not, but that issue has nothing to do with freezers.

Actually it does. The bills were marked by the FBI which is PROOF that Jefferson took the money for something he clearly believed he was going to do on behalf of whoever it was he thought the agents represented. The bills are evidence of a bribe. He then hid the money in his freezer. Hiding evidence is a crime.

You know, this was also the same guy that made Katrina rescue workers help him get to his New Orleans home in order to retrieve his personal safe. I'll bet this little felon was just a-shittin' his pants when he came to the realization that the money (allegedly $400,000.000) he took illegally might very well be taken by some other little felon looting his house. Recourses meant to save people not only wasted their time saving his ill-gotten gain, they ended up getting stuck, resulting in even more rescue efforts being diverted to the task of unstucking them.

Jefferson lied; people died.

Jefferson should be charged with murder.

|5.31.06 @ 4:00PM|#

The absolute tone-deafness, lack of any regard for appearance, and utter lack of awareness of voter anger is what's astonishing to me. That our congress critters are arrogant and petulant enough to presume themselves beyond the reach of law is not surprising, but that they would throw such a public and unapologetic hissy fit about this, without appearing to realize the extent of PR damage they are doing to themselves, is kind of remarkable. Neither party is held in high approval right now, to put it lightly. And they just keep digging.

Plus, from a purely cynical political point of view, it's damned stupid of the Republicans to be throwing away what could have been a very good stick with which to beat the Democrats - the Dems can't very well scream about a culture of corruption with someone like Jefferson so stubbornly and blatantly refusing to be held accountable. But naturally, when the congresspeople decide to put "principle" before politics, they pick a bullshit issue like this one.

|5.31.06 @ 4:05PM|#

There is nothing neccessarily illegal about [having large amounds of cash in the freezer].

What is illegal is taking cash in exchange for a quid pro quo. It is unclear whether Jefferson did that or not, but that issue has nothing to do with freezers.

Hmmm, must be some new standard of evidence - each bit must itself be an illegal act in order to be probative. I wasn't aware of that...

Something tells me that if this was an FDA official suspected of taking a $100,000 bribe from a corn syrup executive who had then been found with loads of cash in the freezer someone might take a different view as to the evidentiary weight of that not necessarily illegal fact.

R C Dean|5.31.06 @ 4:05PM|#

Congress issues subpoenas all the time, and executive branchers stonewall and ignore them all the time.

The differences, and they are very substantial, are that Congressional subpoenas are not issued by a court, and are not part of criminal investigations.

What Congress is asserting is nothing less than immunity from investigation for alleged criminal activity. If some implied Constitutional immunity exists (and it would have to be implied, because it certainly doesn't exist in the words on the page) that would bar execution of this warrant, then I am would be interested in reading a principled explication of it that would lay out the limits of the immunity.

In addition to the scope of the proposed immunity, one of the difficulties it creates is that it is not clear who is entitled to assert and to waive the privilege.

Can any old Congressman assert/waive for anyone else? Can Hastert waive the privilege for investigation of Democrats, but decline to do so for his Republican buds? Is only the accused entitled to waive? Does it take a (literal) act of Congress?

Once you start thinking about the mechanics, the absurdity of the whole thing becomes even more clear.

Should an ATF agent who say the whole thing walk in behind him and start rummaging through the fridge of the Armed Services Committee breakroom, without asking permission?

The answer is no. The executive branch should not cross that line.

And joe once again misses a critical distinction. This wasn't a purely executive branch affair. This was the execution of a judicial search warrant.

So, to true up joe's example with reality:

Should an ATF agent who saw the whole thing get a search warrant issued by a judgeand start rummaging through the fridge of the Armed Services Committee breakroom as specified in the warrant, without asking permission

And the answer is, of course, yes. Even Democratic Congressman should not be above the law (the Kennedys notwithstanding).

Astonishing that joe is so complacent about Congressmen getting away with criminal activity in office. One suspects it has to do with party affiliation; I can't imagine he would be so sanguine if it was, say, Tom DeLay asserting this privilege to torpedo his indictment.

|5.31.06 @ 4:09PM|#

Article I, Section 6

"They 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."

Doesn't even look like a search w/ warrant is Constitutionally prohibited. They are only protected from arrest during congressional sesions to avoid the spectre of the executive imprisoning legislators during votes. Where is the clause that prohibits searches of congressional offices under a warrant for a criminal violation?
-K

|5.31.06 @ 4:11PM|#

Question: I thought the simple answer was that the GOP is currently ignoring a DoJ subpoena that is, for all intents and purposes, pretty identical to Jefferson's but encompassing a hell of a lot more Congressmen -- and didn't want the DoJ to establish precedent?

Congress is controlled by the GOP. The GOP doesn't give two shits about Jefferson, or Jefferson's rights. They don't give two shits about Executive overreach or Congressional rights UNLESS required to give a shit to protect their own asses.

If they let this slide, they'll have nothing to stand on when the FBI raids Hastert's offices next month.

|5.31.06 @ 4:23PM|#

"the Dems can't very well scream about a culture of corruption with someone like Jefferson so stubbornly and blatantly refusing to be held accountable."

Question: Hasn't Jefferson been asked to resign by democratic party leadership, or am I misremembering something?

Doesn't this, then, contrast with the republican contortions that went on ad nauseum with Delay and his alleged crimes?

And, more generally, isn't it a bit pathetic to pretend that the democrats have any power to take any real stand about anything at the moment?

|5.31.06 @ 4:25PM|#

budgie,

shhhhhhhhhhhhhhhhh!!

Thoughtful comments like yours will disrupt the typical Democrats are just as bad/worse meme!!

|5.31.06 @ 4:31PM|#

So long a judge issues the subpeona, the search is legitimate. That is 2nd year law school 4th amendment jurisprudence. This is not a speech and debate issue. Hastert & Pelosi are scabs on the republic.
Where the issue lies here is the scope of the search, obviously there would be a lot of unrelated docs and stuff that belongs to staffers and constituents that should remain hands-off. Pretty hard to enforce the scope issue prior to the search though, rights of other parties infringed could only be vindicated by subsequent litigation. But that is the system.
The separation of powers remain intact so long as the third branch is allowed to exercise its oversight.

R C Dean|5.31.06 @ 4:36PM|#

They are only protected from arrest during congressional sesions to avoid the spectre of the executive imprisoning legislators during votes

Not even that; the reference to "breach of the peace" is intended to encompass all criminal activities, and so the immunity was only intended to apply to being tied up in civil litigation while Congress was in session.

Hasn't Jefferson been asked to resign by democratic party leadership, or am I misremembering something

They only asked him to resign his Ways and Means committee membership. He refused, and they backed down. DeLay, by contrast, resigned his leadership positions.

|5.31.06 @ 4:44PM|#

"DeLay, by contrast, resigned his leadership positions."

Cool...

Let's see if I have this straight.

In the next year and a half the Democrats will somehow managed to castrate any committee that attempts to censure Jefferson, play with their naughty bits and pray that the charges go down the memory hole, and then manage to award Jefferson some sort of medal on his way out the door.

Yeah, you're right, total equivalency.

|5.31.06 @ 4:45PM|#

They only asked him to resign his Ways and Means committee membership. He refused, and they backed down.

Since he has only been indicted, and not convicted, it would seem fair to not try and get him thrown out of congress until he is convicted or the voters vote him out. As for committee positions, he definitely should stop down willingly or be forced out (I dunno what the process would be to remove someone from committees involuntarily). And at least the Dem leader's have called for that. It's the CBC that is having a hissy fit about the request.


DeLay, by contrast, resigned his leadership positions.

Was this after the GOP held a couple votes to change the rules about indicted members of Congress and leadership positions? Or did that whole fiasco fall down some kind of memory hole?
Please don't pretend that the GOP just surrendered Delay's leadership positions. In fact there were quite a few GOP congressman who called the Delay indictment nothing more than a partisan witchhunt.

R C Dean|5.31.06 @ 4:54PM|#

Oh yeah, Tom, the Reps didn't exactly cover themselves in glory when DeLay was indicted, but that doesn't change the fact that he gave up his leadership positions.

In fact there were quite a few GOP congressman who called the Delay indictment nothing more than a partisan witchhunt.

Which is a pretty accurate description, if you are at all familiar with the Dallas DA. He has quite the history of indicting (or trying to indict) those with whom he disagrees politically (regardless of party affiliation).

|5.31.06 @ 5:04PM|#

As a libertarian traditionally aligned with the pachyderms, I'll say that the bad behavior seems more prevalent in the right coalition at this point in time.

My suspicion is that we are looking at an artifact of staying in power unopposed for so long in Congress.

|5.31.06 @ 5:05PM|#

Huh. I'm not clear on how this is remotely a partisan issue. We're seeing a lot of corruption lately, and it seems to go both ways. I'm actually marginally surprised at the Democrats looking as bad as they have recently, given that the party in power usually gets a little more of the largess. Whatever. The corruption is endemic, and the invocation of the Speech and Debate Clause was CYA, not a principled statement of Constitutional law.

Unlike some here, I do see the potential for a problem in these types of situations. The Speech and Debate Clause offers minimal if any real protection for the individual felon, but there is something to be said for not allowing the executive branch to harass Congress and interfere with the legislative process. I don't at all believe that such harassment is happening in the Jefferson case, but I do believe that there is a line somewhere between bribery and running a traffic light where the executive should bend a bit to Congressional prerogatives.

Hey, joe, do you remember debating about who would win between the Capitol Police and the Secret Service? I think it was you, anyway. The Secret Service would totally beat the Capitol Police. They've got cooler weapons.

|5.31.06 @ 5:47PM|#

What would you bet that Jefferson gets re-elected, if he isn't convicted?

Dave W.|5.31.06 @ 5:52PM|#

that Jefferson took the money for something he clearly believed he was going to do on behalf of whoever it was he thought the agents represented.

My point about the quid pro quo is that we have no idea whether that something was something specific (a quid pro quo) or non-specific (not a quid pro quo).

This stuf about quid pro quo's probably sounds crazy if you haven't been around HnR much, but come back for one of the campaign finance circle, err, discussions where the quid pro kids are less shy about what they think companies should be able to do with their money.

|5.31.06 @ 5:52PM|#

Well, jw, if he'd been caught with an undercover "prostitute" and a crack pipe, or if he'd contributed to the enhancement of a natural disaster, he'd be unbeatable. Not sure if this is egregious enough to guarantee his reelection, though.

I do think he has a great future as a pitchman for any frozen product or refrigerator.

|5.31.06 @ 5:54PM|#

Dave, isn't there a big difference between a contribution to a campaign and a contribution to my freez--I mean, pocket?

Dave W.|5.31.06 @ 5:58PM|#

Hmmm, must be some new standard of evidence - each bit must itself be an illegal act in order to be probative. I wasn't aware of that...

Why don't you just say what the quid pro quo was then, Brian Courts, if that element of the crime is obvious to you? Which floor vote did Jefferson agree to pledge? How do you know he pledged a vote or any other specific act?

I am not saying that his crime had to be chaote, but certainly the quid pro quo would have been decided before cash changed hands (if there was one, that is).

Larry A|5.31.06 @ 6:03PM|#

Where I'm really at a loss here is why the Congress isn't ejecting Jefferson immediately. He was caught on videotape accepting a $100,000 bribe to influence his vote in the Congress.

C'mon. Everyone knows that the proper way to deal with Congressional bribery is to pass a new law limiting campaign contributions.

And they found the cash wrapped in tinfoil in his home FREEZER, for God's sake! (Talk about cold cash.)
There is nothing neccessarily illegal about this.

Yeah. Let a cop find $100,000 in your freezer and see how "legal" it is. Asset forfeiture, baby.

|5.31.06 @ 6:05PM|#

If an executive privilege exists and, evidently it does, then "congressional privilege" exists on the stronger foundation of the Speech and Debate clause. After all, there's no constitutional mention of executive privilege. Should some supoena be issued by a judge for the records of some White House official, the FBI would not even be let past the gates of the Whitehouse, much less allowed to ransack his or her office and carry off documents. As co-equal branches of the government, our Congress and Senate deserve the same treatment of privilege. The Capitol police should be ordered to deny entry to Congressional an Senate buildings by supoena wielding DOJ employees.

|5.31.06 @ 7:12PM|#

The only lingering issue that does matter was the taking of documents that weren't related to the crime in question.

And how do we know those documents aren't related to the crime in question? By looking at them!! Members of Congress shouldn't get to hide their crimes by claiming, without examination by the investigative team, that certain documents are really legislative work product. That's a matter for the investigators to decide.

Dave W.|5.31.06 @ 7:13PM|#

Dave, isn't there a big difference between a contribution to a campaign and a contribution to my freez--I mean, pocket?

when I ask on campaign finance threads, the answer I get here is that it is all good -- except and only except when there is a quid pro quo.

My point basically: that there is no quid pro quo requirement in bribery law, or to the extent that there is, there shouldn't be -- otherwise Jeffereson (and every other savvy defendant) would have a great defense that he clearly does not have in reality.

THOUGHT EXPERIMENT:
Let's say Cathy Young and Northwestern grad Dave Weigel teamed up on a Reason sponsored FOIA so that we had all the tapes the FBI has access to here at HnR. Let's say we lissened to them all and reluctantly concluded that that cagey scoundrel Jefferson had made no specific promises, no promises whatsoever, even warned, with a lawyer's knowing smirk, that nothing he said should be construed as a quid pro quo. On the hypothetical tapes Jefferson even announces, in all seriousness: "I vote how I want and if they want to pay me fine, and if they don't, that's fine too." Would any of this make Jefferson's conduct acceptable?

|5.31.06 @ 7:14PM|#

Why don't you just say what the quid pro quo was then, Brian Courts, if that element of the crime is obvious to you?

Where did I claim it was obvious? What I claimed was finding money stashed in a freezer can certainly be considered evidence in the case against him. Your claim that it isn't illegal is both true and irrelevant. Your claim that this has nothing to do with the freezer is wrong.

Just because we don't know where or when the exact quid pro quo took place doesn't mean we can't infer (and, in the case of a jury, believe beyond a reasonable doubt) there was one if the evidence of its existence is strong enough. How else would the government ever get a conviction for prostitution? The courts routinely infer a quid pro quo understanding from the evidence. Besides, though I'm no expert, I'm sure in a bribery case, just as in a prostitution case, it is enough that an agreement for a quid pro quo was made (explicitly or implicitly), even if that agreement is never, consummated, as it were.

|5.31.06 @ 7:30PM|#

Dave W.

Please read this. In case you don't, I'm going to cut-and-paste some relevant paragraphs.

It was July 30, 2005, and, after the morning meeting, the two walked to the hotel parking lot. Jefferson reached into her car trunk and pulled out a leather briefcase containing $100,000 cash meant to grease the palms of Nigerian officials.

...

Unknown to Jefferson, Mody also had been working with the FBI, which videotaped the transaction from several vantage points. Four days later, agents would raid Jefferson's home on Capitol Hill and recover $90,000 in a freezer, where stacks of $100 bills were wrapped in aluminum foil and stored in frozen-food containers.

...

The FBI affidavit released Sunday suggests a far broader and lucrative scheme was afoot, alleging that Jefferson also sought and received bribes directly from a "cooperating witness," who sources say is Mody and who was to provide financing for the iGate ventures in Africa.

And believe me there are many other juicy details in that article.

That said, can you PLEASE stop trying to compare this to a compaign contribution? I completely agree that Congressman Jefferson should be presumed innocently until found guilty beyond a reasonable doubt in a court of law, but the allegations in the FBI affidavits go far beyond any equivalency you are trying to make re: campaign finance reform.

|5.31.06 @ 8:12PM|#

Jason Ligon,

The question to me isn't whether this is legal, but whether it's wise.

Barstow Freak, that's the best argument I've ever seen supporting the raid. Cheers.

"The bills were marked by the FBI which is PROOF that Jefferson took the money for something he clearly believed he was going to do on behalf of whoever it was he thought the agents represented."

Huh? The bills were marked; ergo, there was a quid pro quo. Again, huh?

|5.31.06 @ 8:18PM|#

RC Dean, "The differences, and they are very substantial, are that Congressional subpoenas are not issued by a court, and are not part of criminal investigations." I guess this is the heart of the question; is Congress a coequal branch, or are some branches more equal than others? You can go to jail for lying to Congress, or being found in contempt.

"What Congress is asserting is nothing less than immunity from investigation for alleged criminal activity." Uh, no, sorry. What they are asserting is that the leadership should be informed of the search and allowed to have a lawyer present. Let's not go crazy hysterical here quite yet.

"In addition to the scope of the proposed immunity, one of the difficulties it creates is that it is not clear who is entitled to assert and to waive the privilege." The President of the Senate and the Speaker of the House, according to Hastert and Pelosi. Was that so hard?

"This wasn't a purely executive branch affair. This was the execution of a judicial search warrant." Congress is coequal with the judical branch, as well.

Your partisan whining, and inability to contend with the actual issue at hand, doesn't change that.

|5.31.06 @ 8:25PM|#

"DeLay, by contrast, resigned his leadership positions."

Several months later, and against, rather than in response to, the pressure put on him by his party. Great equivalence there, RC.

"Which is a pretty accurate description, if you are at all familiar with the Dallas DA. He has quite the history of indicting (or trying to indict) those with whom he disagrees politically (regardless of party affiliation)."

Tell me again about my partisan blinders. Hack. Do you actually have any principles anymore?

|5.31.06 @ 10:02PM|#

I find it hilarious and wonderful that joe finally gets to call someone both a partisan and a hack and be perfectly correct.

Unless there's another time that I missed.

|5.31.06 @ 10:42PM|#

I am very sympathetic to the point that joe is making. However, my worst fears are assuaged by the fact that the independent third branch of government issued a warrant.

That warrant is more due process than the rest of America is getting from the NSA these days...

I would agree that there are probably better ways to deal with this. I assume a judge could ask the Capitol Police, or whatever they call the guys who guard Congressional buildings, to serve the warrant? I don't know the ins and outs of who has what turf, but I assume that the Capitol cops, being cops, can perform executive functions like serving a warrant even though they are employed by the legislative branch.

As a practical matter it doesn't really concern me too much which agency serves the warrant in a case like this, where the allegations are supported by significant evidence and the search was authorized by a judge. But I do recognize that, as a matter of principle and precedent, it is better if the executive branch doesn't get to search Congressional offices. It doesn't really matter here, but I recognize that there are some barriers worth maintaining for the future.

So, to sum up: My worst fears are assuaged by the involvement of the judiciary. But I would agree that there are better ways to do this.

|5.31.06 @ 10:44PM|#

Do I get the Cathy Young award for that post?

|5.31.06 @ 11:10PM|#

BOTH SIDES ARE BAD

|6.1.06 @ 12:31AM|#

Here's a useful question: CAN a Congressmen be forced from office? What are the procedures to, for instance, force Jefferson from office rather than pressure him to resign?

Can he be, basically, impeached? How many Congressmen would it require? (Obviously a 2/3rds majority or more). Currently the ethics committee doesn't even meet, which is a result of both sides calling a "truce" because they were both somewhat corrupt AND abusing the process at the same time, probably because there was a decent amount of corruption around.

Regarding Jefferson being asked to step down from his Committee -- I think Congress is in recess. The Dems CAN force him from his committee, and probably will when Congress resumes session. They can also eject him from the party, but I admit I have no idea what procedures the Democrats have for that. It's not something that comes up too often. I would suspect that Pelosi is figuring that Jefferson's lawyers are going to convince him soon enough that being a Congressmen isn't really in his future, and he should resign his seat entirely.

In a strictly pragmatic sense, it's not worth a fight with the CDC (especially once you've gotten your demand that he step down out into the public) over something that'll be rendered moot soon enough.

|6.1.06 @ 3:11AM|#

"Here's a useful question: CAN a Congressmen be forced from office? What are the procedures to, for instance, force Jefferson from office rather than pressure him to resign?"

Article I, Section 5, second paragraph of the Constitution:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

If he gets reelected, they can expel him again.

Dave W.|6.1.06 @ 7:45AM|#

Just because we don't know where or when the exact quid pro quo took place doesn't mean we can't infer (and, in the case of a jury, believe beyond a reasonable doubt) there was one if the evidence of its existence is strong enough. How else would the government ever get a conviction for prostitution? The courts routinely infer a quid pro quo understanding from the evidence. Besides, though I'm no expert, I'm sure in a bribery case, just as in a prostitution case, it is enough that an agreement for a quid pro quo was made (explicitly or implicitly), even if that agreement is never, consummated, as it were.

I think you are starting to get my point, Brian Courts. A lot of prostitution sting is to get the john to say the correct words to show that sex is promised. They try hard to get those words about sex on tape, the police do. Sometimes tey succeed and sometimes they don't. Sometimes the john is savvy and won't say the proper words. that is tough luck for John Law.

As a lawyer, I understand circumstantial evidence and implication. But there are limits to that. I wouldn't read too much into the freezer, although that is handy for you all. It comes down to what words are on those tapes we haven't heard (and will probably never get to). Chances are that the FBI does have some incriminating words on the tape showing a quid pro quo in order to build a strong case, but we should not assume that. Maybe Jefferson was savvier about what he said than we are being lead to believe. However, it takes weak circumstantial way, way too far to say that any case invoving confidential informants and cash hidden in a freezer prove anything. They don't. It matters what was said between these parties.

The part that you don't yet seem to be getting, Brian Courts is a pedagogical one. To us, you, me, David Weigel, RCD, joe, Joe and everybody else, we don't care whether Jefferson promised a quid pro quo or not. Not because the circumstantial evidence is so strong here (without the tapes, its not), but because we all implicitly agree, at least in this case, that it makes no sense to require a quid pro quo.

THOUGHT EXPERIMENT 2
Instead of dealing secretly, when the informant came over, imagine that Jefferson said the following into the tape:

"I know we are arrangng this deal in secret, but I am worried that that will look suspicious or even illegal if the public ever finds out about the deal we are contemplating here. So, I have drawn up this contract. It explains that this money is only being given me for the purpose of giving all government contract products my most careful and fair consideration and to choose and push only the prduct(s) that I am sincerely convincesd are the best. You, giver of the money, will have to agree that this is all you get out of the deal and no more. You have to very plainly agree that no quid pro quo will ever be required of me for accepting this payment for more careful and fair consideration."

The parties proceed to sign the contract so that we have direct evidence of what was exchanged in stead of merely circumstantial. If the real Jefferson has such a written contract does anybody think it should excuse the bribery charge here?

I say no -- precisely because there is no quid pro quo requirement -- only a softer requirement of "influence" (which would be met under this hypothetical as the Congressman is influenced to consider something more carefully).

|6.1.06 @ 9:31AM|#

I have a question for the peanut gallery. Does anyone know the law on a government official accepting gifts? I'm not talking bribes here, just gifts. Not that the gift-taking limits would include the teeth that an anti-bribery law has, of course.

|6.1.06 @ 9:46AM|#

thoreau,

"However, my worst fears are assuaged by the fact that the independent third branch of government issued a warrant."

I understand what you're saying - such a filter can cut down on bad, corrupt executive actions. But if you'll notice, I've never incorporated the arguments about gathering excess data into my point. I don't like the executive branch intruding onto Congress's turf even for honest, defensible reasons, no matter how carefully it's done. On the flip side, even if Congress were to issue a perfectly valid subpoena, I wouldn't want it to be enforced by the Sergeant at Arms intruding into the White House without permission.

My argument is akin to those who deplore Jim Crow, but oppose the Civil Rights Act on federalist grounds; noble cause, yes, but it's not their place.

Also, as a practical matter, I don't believe any harm was done because the FBI didn't request Congress's permission. This is not about practical matters or immediate consequences.

Dave W.|6.1.06 @ 9:48AM|#

PL,

You may remember from law school the case of the citizen (in Atlantic City I think, somehwer in Jersey) where the guy gave a police detective $5000 to solve a crime (robery of a diamond maybe?) that the police detective was charged with solving anyway as part of his police duties.

IIRC, we learned that case in contract because the detective was trying to enforce his contract, which was found invalid as contrary to public policy. However, since I haven't read the case since 90-91, my memory may be hazy on the details.

I think of that case everytime Bailey says it don't matter who pays him or how much.

|6.1.06 @ 10:00AM|#

Dave, I was thinking about the federal statute on gifts. I'm not in the mood to go hunting for it, but I do recall it vaguely from my brief stint with the Clinton administration. I'm sure there's little in the way of punitive measures in that law, though there might be some teeth for really egregious violations. The reason I bring it up, of course, is that it's a strict liability law (I'm fairly sure)--accept a large gift that isn't exempted (like from a family member) and get into some level of trouble. Now that I think about it, this law must be the one Harry Reid ran afoul of by taking seats at a boxing match while considering boxing legislation or something (pardon me if I'm butchering the facts--I haven't been paying attention to that news item). Though that sounds like bribery, doesn't it? I friggin' hate politicians.

Incidentally, I posted a link to some joke warning labels in the Preskool Math thread, mostly for your benefit. I thought they were hilarious, but my sense of humor is not always shared :)

VM|6.1.06 @ 10:12AM|#

PL:

as you probably remember, declaration of gifts to the office of protocol is very important. For when, say, the Sec. of Def. somehow "forgets" he declared a jewelry box to said office, Juri... i mean Lt. Cmdr. Farrell... can nail him.

you see, it is very important.

p.s., the Lt. Cmdr. served on a ship - see how it all ties together?

Dave W.|6.1.06 @ 10:19AM|#

I like the point about gift law, because gift law is premised on the assumption that large gifts will tend to change the way people think over time, even when they deny that the gift was an influence.

That is why campaign finance needs to be so carefully controlled: if those pots of money grow too large (and they probably already have) then some of that money will leak out to friends of the politician running, even if the money is effectively laundered through overpriced tv ads or whatever sophisticated mechanisms you use. USians may not have read much about the "sponsorship scandal" we had going up here in Canada -- in that case the kickbacks went through government sponsored ad campaigns (not political campaigns). It took a long time for Canada to unravel the dastardly scheme and, of course, still no one is really going to jail. The Liberals did lose control of the government thankfully, but: (1) later than they should have; and (2) only cause they got caught.

My point is that these careful pidgeon holes that lawmakers
construct: "bribery," "gifts," "Campaign contribution," "undue influence," etc. probably does a lot more to influence the form of bad politco-money transactions, then it does to quell the substance. I always find it ironic that Reason so vigorously supports the right to give money to politicians. It doesn't seem to me like the type of right either Adam Smith or John Stuart Mill would have gotten real fired up about, given the possibility for shadowy incursions on other people's liberty that these transactions will obviously lead to.

I think we should live in a world where any politician who takes any money,* whether privately or constructively, whether for campaign finance or any other purpose, should be regarded with great suspicion, much like we are regarding Freezer-Bling Jefferson here.

The difference between Dick Cheney and William Jefferson:

Dick got his paying client what they wanted.

FOOTNOTE

* as we are told when raises are legislated, the elected politicians salary is always set and reset high enough so the politician does not need any income from other sources. there outta be serious teeth in that representation.

|6.1.06 @ 10:32AM|#

VM, no doubt. That Gene Hackman was a really bad Secretary of Defense.