"Our government has not faced such a dilemma in more than two centuries"

Was anyone expecting President Bush to enter on Rep. Bill Jefferson's (D-La.) side in his corruption case? That's what just happened, in a big way.

President Bush stepped into the Justice Department's constitutional confrontation with Congress on Thursday and ordered that documents seized in an FBI raid on a congressman's office be sealed for 45 days.
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"Our government has not faced such a dilemma in more than two centuries," the president said. "Yet after days of discussions, it is clear these differences will require more time to be worked out."

Constitutionally, this isn't a huge surprise from the president who signed McCain-Feingold. Politically, what's the use? Does it drag the Jefferson scandal out longer? Is it a bone thrown to House Speaker Denny Hastert?

Comments

[Timothy]

Fucking fuck. I don't even know what to say besides that.

[metalgrid]

My cynical outlook is that there'll be another "scandal" coming out in 45 days that this'll be needed as cover for.

[SR]

"Our government has not faced such a dilemma in more than two centuries,"

Jigga-wha??? People know that I'm a sharp critic of the Bush administration and I wasn't particularly bothered by the implications of the search.

[fishfry]

As Jay Leno pointed out about this case last night ... the Republicans just discovered the Constitution??

[gaijin]

so if you break the law, the place to hide the evidence is in your congressional office?

[Abidemi]

So a lawful search of a genuine scumbag's office turns up massive protests and presidential invention for the sake of "constitutionality" and "separation of powers", and meanwhile illegal massive wiretapping operations that specifically and deliberately violate a law passed by Congress generate-- what? Nothing?

From here on out, vote against every incumbent.

[Timothy]

I'd rather be governed by 537 randomly selected people from the phonebook. The judges can stay, because they require specialty, but Congress and The Executive can be randomly selected for all I care.

[Clean Hands]

Okay, I'm no Constitutional scholar; could someone with a deeper appreciation of the relevant portions help me understand just how in the flaming hell "separation of powers" means "immunity from investigation," particularly when the investigation involves the open purchase of a Congresscum's favors?

The White House needs to legalize whatever it is they've been smoking over there...

[Young Turk]

Clean Hands,
You see, it's all about the I Help You, You Ignore my Lawlessness, and Maybe It Will Help Out My Buddies In Congress When they Come Under Investigation Clause (Article 5, Section 8).

[JD]

Hey, we discovered how to make Democratic and Republican lawmakers agree: find something that suggests the law actually applies to them! I don't get the "separation of powers" crap either. The DOJ was created by an act of Congress, although they called it "an executive department". And if the DOJ can't investigate this, who can? I can just see Pelosi and Hastert kicking down a Congressional office door, guns drawn...

[KipEsquire]

The ghost of Andrew Jackson must really be chuckling right now.

[Clean Hands]

I wouldn't trust either one of them with a gun, JD. Pelosi would piss herself at the sight of one, and Hastert would load the ammo backwards.

[smacky]

"This period will provide both parties more time to resolve the issues in a way that ensures that materials relevant to the ongoing criminal investigation are made available to prosecutors in a manner that respects the interests of a coequal branch of government," Bush said.

This stinks of bullshit.

My guess is that Bush is in on this, too, and that they are all biding their time to destroy and alter the documents in question.

[Doctor Duck]

The ghost of Andrew Jackson must really be chuckling right now

The ghost of Andrew Jackson is always chuckling.

[Mo]

The odd thing is, the people aren't rising up. The everyday Dems want Jerreson out. The Republicans are pissed their leadership is a bunch of pussies. I can understand Congress wanting to protect their fiefdom, but why Bush?

[Dave W.]

FBI played Bush like a cheap fiddle here, didn't they? Either back off on the extreme curtailment of privacy or scare the hell out of the Republican party. Bush chose the former. Check and mate. Oh, its gettin' good.

[Mo]

er Jefferson

[crimethink]

Dave W.,

I posit a 32% probability that the people who engineered that are the same ones who used remote control to crash the planes into the you-know-what you-know-when.

[Agammamon]

I'd say it was a bone thrown to Congress to cover his usurpation of their powers - W probably figures that in 45 days most of the public won't be interested anymore.

[Johnny]

For those with a passing familarity with the political history in the west from 1900 to 1945, this was a significant possibility as soon as Pelosi and Hastert stood up together.

Power cuts a deal with Power to maintain Power. From Italy to the Soviet bloc, this was SOP.

[crimethink]

"Let me be clear: Investigating and prosecuting crime is a crucial executive responsibility that I take seriously," [Bush] said. "Those who violate the law -- including a member of Congress -- should and will be held to account.

ha ha ha ha ha ha!

Notice he didn't specify "including the President", for obvious reasons.

[thoreau]

Well, at least the people in Washington finally agreed on something: Politicians suspected of bribery shouldn't have their offices searched for evidence, even if a warrant is obtained after presenting a court with probable cause.

But tapping my phone without a warrant? Totally cool.

Fuck 'em. Fuck 'em all.

[Pro Libertate]

You know, it is an election year. Maybe "us the people" should get a little outspoken on this matter? We're getting close to uncorrectable levels of corruption, in my mind. And merely switching parties won't solve that problem. Maybe we should just all vote against incumbents, period. At least those that think they're above the law.

[John]

Bush has truely lost his mind on this one. If the Republicans in Congress want to try to cover up rank corruption like Jefferson's that is their problem. Bush should not be an enabler and moreover he should not allow there to be a precident that in anyway inhibits the exectutive from properly investigating Congress for legitimate purposes. That those litigious old bastards could sit there and whine about a search warrent being served on them after all of the innocent people who have been slimed by BS Congressional oversight investigation just boggles the mind.

[Erik]

What the Farkbot? The Protocols of the Elders of Zion didn't say anything about this. Taking odds at 9-to-1 that Bush's Presidential papers will be withheld/ruled classified for 20-50 years post-presidency.

[D.A. Ridgely]

I take the view that all politicians are weasels and that this operating presumption is so likely to be true in any particular case that well-nigh irrefragable proof to the contrary is required for me to admit an exception.

In the end, however, it doesn't much matter whether our current insect overlords are motivated by ideology or self-interest. (I leave it to others to decide for themselves whether Republican members of Congress might rise to defend Jefferson more on principled constitutional grounds than concern that their own misdeeds might also be discovered. As for me, see my first paragraph above.)

As matters stand, we can only ally temporarily with whichever swarm is likely to do less damage at any particular time. Obviously, that time has past for the anti-left Republican party, but I have no reason to believe that the Democratic locusts who will soon, I hope, replace them in at least one house of Congress will be much better.

[Pro Libertate]

You know, this is the kind of thing that leads to acts of civil disobedience. Maybe we (meaning the country at large) should all just refuse to vote this year. It might not change anything, but it would freak out some people. Or maybe there's a better idea out there, like going down to the ocean to make salt. That sort of thing.

thoreau, you realize that with that name, this should be your bailiwick 🙂

[D.A. Ridgely]

Er, "passed" and not "past." (I don't need a spell checker, I need a thought checker.) And by "anti-left" I should perhaps have written "pro-state" instead.

[fletch]

Does it drag the Jefferson scandal out longer?

Duh!

The Democrats best strategy this November was based on "the Culture of Corruption".

I wonder why Republicans want to keep this scandal 'front page' as long as they possibly can?

Also, note that as long as Repubs are whining, the media are continually forced to identify Jefferson as a "Democrat" in explaining the 'back-story'...

[fletch]

Oops! I forgot to add...

"Karl Rove is still the man!"

[Pro Libertate]

If this is strategy, then the GOP is dumber than it looks. And it looks quite dumb. Just leaving Mr. Freezer out in the cold would've probably erased most voters' memories of GOP corruption come November. It's just so much more vivid an image than the scandals on the other side of the aisle. And with video! Nah, this isn't some trick to prolong the news. It's just corrupt politicians running scared.

[Dave W.]

I posit a 32% probability that the people who engineered that are the same ones who used remote control to crash the planes into the you-know-what you-know-when.

Well, somebody didn't want Agent Samit to get his search warrant. Blowback?

[joe]

Where the Democratic leadership has been calling for Jefferson to step down from his committee positions, and even resign from Congress, in sharp contrast to how the Republicans have been treating their dirty birdies (in both political branches), I'm not buying the angle that Karl Rove is trying to drag this storyline out.

More likely, helping cover up for Congressional Republicans with problems on the horizon. It's worth noting here that Dennis Hastert, who never tries to get his name in the news before this, was recently accused of being involved in the Duke Cunningham bribery case.

[crimethink]

joe,

So, Nancy Pelosi is now enmeshed in the conspiracy to help Congressional Republicans cover up their scandals? What a tangled web we weave.

[joe]

Honestly, crimethink, I'm having a little trouble connecting the dots here.

The "king" sent his "troops" into "Parliament." It's pretty obvious why people would be concerned about that.

But George W. Bush? That's not the kind of thing this president gets concerned about.

Maybe he's concerned about a revolt by his party in Congress, because some of them are actually standing up to him.

I can't even begin to guess where this is all going, but I'll say this: there's been too much amity between the houses of Congress, and between the Legislative and Executive branches, for the past few years. A good fight about the prerogatives of the different branches of government is exactly what this country needs.

[joe]

I don't get Weigel's McCain-Feingold reasoning, either.

Maybe I'm just slow tonight.

[uncle sam]

Big sigh...Oh, if only we could get the right people in office.

[herostratus]

This is a very bad precedent. Fine, Jefferson's a scumbag, OK. But ten years (or less) down the road, do want the DOJ raiding congressional offices looking for... violations of the PATRIOT Act, "espionage", fishing expeditions for personal pecadillos, whatever... Anyway, Jefferson is on freaken video tape; that should be all they need, really. I think this was a very tone-deaf thing for Gonzalez to do.

[thoreau]

That's a good point, herostratus. I'll have to think about it.

[rm2muv]

Herostratus,
Couldn't agree more. We've had quite enough of the executive branch's overreach. Jefferson's had it, without question, so what's the point?

Politics being what they are, we don't need the branches of government to the pissing contest to decide who can raid the other's offices and when.

Actually, I think Bush probably weighed in when he realized that many people in congress could likely get warrents to search White House offices, and thought it better to leave each to their own territory.

[JD]

But ten years (or less) down the road, do want the DOJ raiding congressional offices looking for... violations of the PATRIOT Act, "espionage", fishing expeditions for personal pecadillos, whatever...

The answer is "no", but I think that's a red herring. If the police get a warrant to search my neighbor's house for evidence of larceny, "do you want them going on fishing expeditions in your house ten years from now" is not a meaningful counterargument against their actions. Corruption is a serious matter. Someone needs to investigate it. Who should that someone be? This issue must have come up before; what's been done in the past? Anybody know?

[DB]

But ten years (or less) down the road, do want the DOJ raiding congressional offices looking for... violations of the PATRIOT Act, "espionage", fishing expeditions for personal pecadillos, whatever...

"Yes" for the first two, "no" for the third.

If Congress is going to pass laws like the Patriot Act, they damned well better not be violating it themselves. And espionage, of course, is a very serious matter whether you're a Congressman or not.

[Taktix]

JD, that someone who investigated used to be the press.

[Patrick]

Exactly right, DB.

[joe]

I suppose the reactions of some commenters are an example of American democracy being a victim of its own success. The Constitution and our political culture have been sufficiently strong for so long that there have been no examples of the President using security forces to bully the legislature; hence, people don't really see what the big deal is when executive-branch forces physically enter the legislature to take action against a sitting member.

[Pro Libertate]

From what I've heard, the investigation has been extremely careful of Congressional prerogatives, even to the POTUS' recent intervention. Despite joe's comment, there's no absolute ban on what happened. The key is the Speech and Debate Clause, which really doesn't say "no trespassing." What it protects is the legislative process, offering protection to individual legislators from being investigated or harassed for something they've said on the floor or something they've voted on (I'm oversimplifying, because papers can be included in this protection, but that's the gist of it). It is a big deal to protect Congress from executive harassment, but that's simply not what's happening here. Obviously, Jefferson is guiltier than sin. And the sin he's guilty of is a cardinal one for his position--like Pete Rose gambling on baseball. joe, you should think about your position a bit, because what you're saying implies even more strongly that federal law enforcement cannot even prosecute a sitting member of Congress.

If you think Congress should be completely immune, just imagine if the Speaker of the House were being investigated--who could give permission to look in his office? And what if this were a murder investigation? I'll grant that there should be some guidelines established for investigations of members of Congress, but it is that august body's failure to do so that's opened up this can of worms. Or they could listen to me and add the Office of the Censor as a new fourth branch 🙂

Here's a helpful quote from U.S. v. Brewster, which is a major Supreme Court case on this issue:

Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman's influence with the Executive Branch.

[thoreau]

joe-

I am very sympathetic to what you're saying. However, there are 2 reasons why I'm not worried about searching Jefferson's office:

1) As I understand, a judge had issued a warrant. (Correct me if I'm wrong.) As long as the third branch is supervising it, this isn't a case of an unchecked executive acting unilaterally against a legislator.

2) The Constitution does indeed afford the legislative branch certain key protections, including freedom from arrest while traveling to a meeting of Congress and protection from consequences for anything said in a debate in Congress. (I'm giving the short versions, the lawyers can fill in the details and nuances.) However, there is no blanket protection from any and all searches, no immunity against being investigated for a crime and searched with a warrant if there is probable cause to suspect a crime.

Just as it is dangerous for the President to say "I can do what I want because I'm President", so too is it dangerous for legislators to say "You can't investigate criminal allegations against us because we're legislators." The President has the powers spelled out for him, and the legislators have the special protections spelled out for them. Other than what is spelled out for them, they are ordinary citizens.

Or at least they were ordinary citizens, once upon a time. Now, I'm not so sure.

[joe]

Pro L,

Where did I say there was "an absolute ban" on what happened? The issue is not whether this is legal, but whether it is wise.

Surely you can see how searches of Congressmen's offices can be a tool to interfere with them for their actions in the legislative process. While you are correct, and this does not appear to be a case of political harrassment, that doesn't change the fact that this raid could establish an unfortunate precedent.

Of course I don't think Congressmen should be immune from investigation or prosecution. I can see both sides here. I just think it's unfortunate that so many other people cannot.

Your idea of a fourth branch isn't a bad one. Other such ideas could include empowering the DC District Court to oversee Congress, or perhaps an agency could be created by Congress to police itself.

thoreau, of course they are not ordinary citizens. They are sitting legislators. They are elevated to a position of greater legal rights, so that they will have the power to stand up to the executive. And in this case, "the King's men" went into "the house of Parliament" without Parliament's permission.

Ultimately, the raid on Jefferson's Capitol Hill office isn't, itself, problematic. But I can see similar situations that would be a problem, and I'm not confident that there are laws and protections in place to distinguish the one from the other.

[Seamus]

I don't get the "separation of powers" crap either. The DOJ was created by an act of Congress, although they called it "an executive department". And if the DOJ can't investigate this, who can? I can just see Pelosi and Hastert kicking down a Congressional office door, guns drawn...

So I take it then that you'd have no problem if the Bush Administration decided to take a leaf from Rudy Giuliani's book (as U.S. Attorney for the S.D.N.Y., not as mayor) and have a SWAT team interrupt the proceedings of the U.S. Senate by bursting into the Senate chamber with a gaggle of reporters in town and leading a couple of Senators off in chains? (Charles I tried a similar stunt, but couldn't pull it off because the Members of Parliament had skipped ahead of the cops; I'm sure Bush would be suere to have better intelligence and would make sure the arrests took place by-the -numbers, with the C-SPAN cameras running.)

[The Phalanx]

This case has nothing to do with Separation of Powers and the raid in no way violated the Constitution. If anything, the president's interference was unconstitutional. These hack politicians in congress simply object to the inescapable reality that they are not above the law....but then again rule of law has always been optional for that bunch.

[Seamus]

If you think Congress should be completely immune, just imagine if the Speaker of the House were being investigated--who could give permission to look in his office?

The House of Representatives could give permission.

[Pro Libertate]

Okay, joe, I'll buy that. This is an area susceptible to abuse, no doubt about that. I was actually surprised how cautious this administration was in dealing with the matter. I wish they were as concerned about us ordinary folk.

Historically, sovereigns abused legislative bodies in this manner, so any actions to investigate or prosecute a sitting Congressman need to involve a great deal of caution, and, if possible, Congressional approval of some sort. On the flip side, legislative bodies have been known to harass executive officials with bills of attainder and other fun and games.

With a censor, we could place the authority for investigations, etc. all in the hands of that branch. It could be controlled by having appointments and confirmations, as well as being subject to overrides of some sort. This has been discussed here before, but the big challenge is finding a way to keep it from being used for purely partisan purposes. In a two-party system, maybe the solution is to have equal numbers of each party on the censor "board", though I don't know how well that would work. I'd like to have nonpoliticians involved, but I don't know how to do that either. I'd certainly have no problem funding an organization that constantly investigated everyone in elected office. That would be great. I'd be much happier if 10-20 officials went packing every year (not counting elections, of course). Ideally, people would be shown the door for violating the Constitution, too, not just for crimes and unethical conduct.

[crimethink]

perhaps an agency could be created by Congress to police itself.

Yeah, we've seen how well that works in the executive branch. How's that DOJ investigation of the NSA wiretapping going?

in this case, "the King's men" went into "the house of Parliament" without Parliament's permission.

They didn't go into the house of Parliament, they went into the offices of Parliament, in a separate building from the one where Parliament meets. If you think that's a meaningless distinction, take it up with the guys who wrote the Constitution.

[Pro Libertate]

The Censor has to be a separate branch of the government to work. Any investigative body that's more or less beholden to one branch ain't going to cut it.

[Pro Libertate]

The Censor has to be a separate branch of the government to work. Any investigative body that's more or less beholden to one branch ain't going to cut it.

[johnnyr]

Yes, I am really perplexed by the congressional 'outrage'!

I just don't get it? Are the congress above the law? Who CAN raid a congressional office? A warrant is a warrant, and the Capitol is within the jurisdiction of the USA.

I agree...the congress has a problem with a WARRANT and evidence approved by a court, yet they have no problem with WARRANTLESS searches on everyday Americans!?!?!?!

Outrageous!

[Seamus]

I just don't get it? Are the congress above the law? Who CAN raid a congressional office? A warrant is a warrant, and the Capitol is within the jurisdiction of the USA.

Great! So if the D.C. police have probable cause to believe that Neil Bush is downloading kiddie porn on a computer in the White House one weekend when he's visiting his brother, all they need to do is get a magistrate judge down at Superior Court to issue a search warrant. I'm sure the guards at the Pennsylvania Street entrance will just let the cops right in as soon as they see the warrant. After all, it was issued by a judge. And no one is above the law.

That would totally happen.

[joe]

crimethink, the House and Senate office buildings have the same legal status as the Capitol building. They're secured by Capitol Hill Police, and Congressional rules adopted by each house, or by both, are fully in force there.

Anyway, your argument is a dodge. Do you expect us to believe that your position on this issue depends on whether the Congressman in question is Chair of the House Rules Committee, and has an office in the big white building, or simply has a seat on that committee, and is in the Rayburn building?

[joe]

Cripes, look at the posts by The Phalanx and johnnyr. Not even a glimmer of recognition that there is even a potential problem here, or a legitimate explanation for why people might be concerned. I can understand people being on the other side of the question - hell, I still don't know where I stand - but to not even be aware that there's a question here?

Don't schools have civics classes anymore?

[Pro Libertate]

joe, there's certainly an issue here. That's obvious when even the loose cannons of this administration are tiptoeing around the investigation. I think this sort of search is okay, within bounds, but it should always be a big deal. The last thing we want is the executive interfering with the legislative process (at least, outside of its Constitutional power to do so). The reverse is true, too, of course.

[thoreau]

OK, joe, I see your point. This sort of thing, if taken too far, would be much, much, much more dangerous than most other government powers.

I'd be much more concerned if the search was done without a warrant. But I'm not too upset if a warrant, issued by a judge upon being presented with probable cause of a crime, is required to search the offices of a Congressman.

Now, ask me what I think about conservatives who rally against the independent judiciary.

[Ken Harkins]

My question is why is the FBI not supposed to do this? Congress says this has never happened before. Perhaps this is because Congress has never been so corrupt before. (As a history teacher I can say this is probably not true.) I understand their subpoena was ignored for several months. Congress seems to be saying that subpoenas are too good for us but not good enough for them. Does congress believe they are above the law? Maybe so, after all Mark Twain wrote that America has no natural criminal class except Congress. However, there is one difference between Mark Twain's 19th century 'robber baron bought' Congress and today's Congress. Today's Congress appears to have been bought by foreigners. William Jefferson was bought by Nigerians. The rest of them seem have been bought by Mexicans. I hope enough Americans pay attention this election cycle.