'Speech and Debate' wrong citation

When it comes to constitutional test cases, the “victims” protesting their alleged grievances are rarely sympathetic and oftentimes outright villainous. The defendants’ rights movement won its greatest victory in the case of Ernesto Miranda, a confessed rapist. Free speech was defined in its finest form thanks to the petition of a group of Nazis looking to parade in a Jewish village. And, even this year, the Supreme Court of the United States ruled on a question of federal jurisdiction within state legal matters using Anna Nicole Smith, a gold-digging former stripper, as the plaintiff.

So goes the case of William Jefferson, the Democratic representative from Louisiana whose office in the United States Capitol complex was recently raided by the FBI as part of a bribery and corruption investigation. This guy is not a likeable character – the feds claim to have found $90,000 in his home freezer and apparently have a mountain of evidence against him. Indeed, Mr. Jefferson is quickly becoming the greatest modern embodiment of all those things Frank Capra’s Mr. Smith once fought against.

But there is one problem: The feds raided his congressional office. And House leaders on both sides of the aisle are having conniptions over this.

In a Friday editorial in the USA Today, Republican Dennis Hastert, the Speaker of the House, writes:

In more than 219 years, the Justice Department has never found it necessary to use a search warrant to obtain documents from a congressional office. These issues have always been resolved without the necessity of a search warrant, and prosecutions have gone forward.

Justice Department officials now insist that this specific case required them, for the first time, to conduct a search. I regret that when they reached this conclusion, they did not work with us to figure out a way to do it consistently with the Constitution.

In fact, Mr. Hastert, along with his Republican colleagues and members of Mr. Jefferson’s party on the other side of the aisle, went so ballistic over this raid that President Bush has ordered all of its fruits placed under seal for 45 days while lawyers attempt to get to the bottom of the whole ordeal. In a statement, Mr. Bush commented:

The Department of Justice's search was part of an important investigation of alleged public corruption. At the same time, the bipartisan leadership of the House of Representatives believes this search violated the Constitutional principle of separation of powers and the Speech or Debate Clause of the Constitution. They note these principles must be adhered to, even in the pursuit of a legitimate criminal investigation.

The New York Times editorial board, taking a much more cynical and partisan route (and leave it to the New York Times editorial board to put a partisan spin on a bi-partisan controversy), wrote:

Our first question is where all these concerned constitutionalists have been for the last five years.

…

The F.B.I. is going to have to show some very good reasons for having precipitated this showdown. Federal investigators have managed to prosecute many other officials for corruption over the last 200-odd years without ever barging into Congressional offices in the process. The danger of abuse with this kind of activity is enormous, especially with a president and an attorney general whose grasp for power seems to have no limits.

The same newspaper is today reporting that Attorney General Alberto Gonzales may have forced Mr. Bush’s hand in this controversy, threatening to resign – along with his top aides – if the White House took a stand against the FBI. The paper reports:

Attorney General Alberto R. Gonzales, the F.B.I. director, Robert S. Mueller III, and senior officials and career prosecutors at the Justice Department told associates this week that they were prepared to quit if the White House directed them to relinquish evidence seized in a bitterly disputed search of a House member's office, government officials said Friday.

So just what is this grave constitutional concern that House members point to? Aside from general notions of separation of powers (the FBI belonging to the executive branch of the government), it is the “Speech and Debate” clause of the constitution that has everyone up in arms. The Associated Press reports:

Congressional leaders accused the FBI of overstepping the bounds of what's permissible under the Constitution's separation-of-powers provisions. In particular, they asserted the FBI violated the "speech and debate" protections in Article 1, Section 6.

This all-important passage of the Constitution reads simply:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. 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.

Yep, that’s it. No comments on the sacredness of congressional offices or assertions of how members of the House of Representatives shall be able to keep their bribes confidential. It’s basically just a clause that says members of Congress need to do their jobs and, in doing so, are exempt from certain portions of the law. IE, if you need to break the speed limit to make a vote in time, no sweat. (This is what Rep. Kennedy was possibly alluding to when pulled over in the middle of the night some time ago; he allegedly claimed he was on his way to vote – magic words if seeking the blind eye of a Washington, DC police officer.)

Frankly, this whole defense doesn’t pass the laugh test.

The case will almost certainly end up before the Supreme Court and, once there, interesting questions of the separation of powers will – and should – be addressed. Meanwhile, it would seem that with undercover video and a whole new breed of “cold, hard cash,” the FBI ought to have little trouble making the case against Mr. Jefferson.

But for now, it would be nice if members of Congress would read their copies of the Constitution, realize that they, too, are citizens accountable to the law, and give up this whole “Speech and Debate” defense. They have plenty to work with on the separation of powers question – and having the Attorney General act like a juvenile cry-baby is sure to only help their case. Yet, perhaps most importantly, what everyone needs to realize for now is that while a notion of separation of powers is not merely part of the American tradition but, indeed, a long-held legal notion, it is not clearly found in the “Speech and Debate” clause of the constitution.