Checks and Balances and Freezers Full of Cash


Schoolhouse Rock never quite covered congressmen with wads of possibly bribery-related cash in their freezers, but the U.S. Court of Appeals for D.C. gives us a lesson in checks and balances in its decision regarding the Justice Department raid of the office of Rep. William Jefferson (D-La.) last year. From the AP coverage:

The Justice Department has predicted a ruling such as the one Friday will turn Congress into a haven where lawmakers can keep evidence of corruption off-limits to prosecutors.

That's not the case, said the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The raid itself was constitutional, the court held. But the FBI crossed the line when it viewed every record in the office without allowing Jefferson to argue that some involved legislative business. The Constitution prohibits the executive branch from using its law enforcement powers to interfere with the lawmaking process.

"The review of the congressman's paper files when the search was executed exposed legislative material to the executive" and violated the Constitution, the court wrote. "The congressman is entitled to the return of documents that the court determines to be privileged."

This doesn't mean that the bleeding-heart courts are going to allow a potentially criminal congressman to just walk, though:

The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson. That will be decided by a Virginia federal judge presiding over the criminal case, which is scheduled for trial in January.

Back in May 2006, Jacob Sullum wrote about this case and wondered why Congress only seems to care about separation of powers when its ox is gored.

NEXT: Git Outta Gitmo

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  1. possibly bribery-related

    Or, you know, whatever.

  2. Sounds like a reasonable decision on its face.

  3. Jean Bart – awesome new nick!!!!!!!

  4. Can’t Congress pass actual *laws* protecting its legitimate privileges? Why drag the Constitution into it, unless we’re dealing with some specific Constitutional privilege, like the limited Congressional immunity from arrest?

  5. A;though I can understand the argument that letting the FBI search a Congressman’s freezer would have a chilling effect.

  6. The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson.

    I don’t see how they can. The precedents set by many drug law cases would seem to imply that evidence obtained illegally that would have been obtained legally if proper procedure would have followed does not get thrown out. I would imagine the same reasoning should apply here.

    I don’t like the precedent as it doesn’t present consequences to investigators for taking shortcuts or not following procedure, but it should apply here as well.

  7. Although

  8. I’m just a bill
    in a bundle of bills
    in freezer on capitol hill

    I made a long journey
    to a congressman’s freezer
    as a bribe to ensure he does
    what his paymaster pleases

  9. I think the decision is probably pretty sound in theory. I do have a question about real-world implementation, though:

    How is Justice supposed to know that a given computer/file cabinet is full of legislative business and thus cannot be touched? Take the Congressman’s word for it?

  10. RC Dean,

    Good question. Right now, the FBI assigned agents who aren’t involved in the case to go through the files, and weed out the legislative business, then turn the rest over to the agents on the case.

    Which is nice as far as it goes, but depends on the executive branch to police itself. A better solution would be for some judicial body to do that work for them.

  11. Shouldn’t it be for a judge to decide what evidence gathered by a FBI raid is part of congressional privilege. Something about checks and balances…

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