First, a caveat: like Steve, I wonder if this prediction process is something of a fool’s errand. Political scientists have some pretty good theories for predicting individual and aggregate voting behavior in general elections, particularly for the presidency, but we have nothing that does much with the primary process, as it’s very sui generis and really a recent innovation in American politics; I’ve been alive more-or-less as long as the primary/caucus system has displaced the conventions, so there’s simply not much data to work with. The basic theory we do have, the median voter theorem, relies on understanding who the primary electorate is… and that varies from year to year and from state to state. Post hoc we can say Kerry appealed to the median Iowa caucus-goer in 2004, but that really doesn’t help as an analytical tool before the election.

With that out of the way… on to predictions. I think the easy prediction to make is that the Democratic nominee is almost certain to be Hillary Clinton. While I think there are elements of the base that prefer John Edwards and Barack Obama, Clinton has the backing of the party establishment and has cornered many of the key endorsements that Obama would need to gain the backing of the African-American community in South Carolina and other states with good-sized black Democratic primary electorates (the presence of native son Edwards on the S.C. ballot is unlikely to help Obama either). Edwards’ failure to receive the unequivocal backing of the labor movement also diminishes his stature as a potential roadblock for Clinton, even though both he and Obama are probably better on the stump and viable general election candidates. The only other candidate with serious executive experience, Bill Richardson, has just failed to gain any traction with the voters despite a potentially appealing resume. I think the most likely Democratic ticket is Clinton-Edwards, with Clinton-Richardson a secondary possibility.

The Republican side is significantly messier. If in doubt, go with the frontrunner, and currently that seems to be Mitt Romney. Romney does have a resume that, on the surface, appears to replicate the successful Reagan formula: former governor of a center-to-left-leaning state who can tack right to appeal to a national GOP audience. Romney, as the apparent establishment candidate, probably benefits from the party’s winner-takes-all delegate selection rules, particularly against a fragmented field where the other candidates generating much excitement–Mike Huckabee and, to a lesser extent, Ron Paul–are out of the National Review-defined party mainstream. Romney’s Achilles heel, however, is that he must win New Hampshire (a virtual satellite of the Boston media market); while the numbers currently show him 15 points clear of McCain and Giuliani, that lead could evaporate down the stretch; if he does stumble, or even if another candidate is within 2-3 points, the Romney anointment could turn real ugly, real quick and the establishment backing might move to Fred Thompson (who may have finally found his legs at the embarrassingly-bad Des Moines Register debate) or McCain. My guess at the ticket: Romney-Thompson, with Romney-Huckabee a possibility if Romney feels his evangelical support is weak.

When it comes down to the general election, I think the fundamentals support a Democratic victory. I also think that Romney is very problematic as a presidential candidate, not only due to his more-liberal record as governor of Massachusetts leaving him open to “flip-flopper” charges but also because of what James referred to yesterday as the “Mormon hurdle”. Romney’s religion is problematic for him on two fronts in the general election: first, because I think many swing voters are increasingly turned off by overt religiosity in the Oval Office, and second I’m not sure if Christian evangelicals–who are quite skeptical of Mormonism–can put aside the serious theological divisions between themselves and Romney, particularly given Romney’s relatively recent conversion to Republican orthodoxy on the social issues that evangelicals care about. The risk for a Romney candidacy is not that these voters will pick Clinton, but simply that they will stay at home.

Clinton is not immune from defections either; the likely nomination of former Georgia representative Cynthia McKinney as the Green Party candidate may attract some black voters and war opponents who are part of the Democratic base she needs to win the general election. And, at some level, Clinton is the best potential nominee for any Republican to face; while the last eight years a Clinton occupied the White House were hardly the pinnacle of New Deal liberalism, many Republicans retain a visceral hatred of both Clintons that any Republican nominee should be able to tap into. But ultimately I think the contest comes down to the voters in the middle, and enough of them are probably ready to let the Democrats and their filibuster-vulnerable majority take the wheel for a while.

Photo source: AP/ABC News

Ralph Nader may make yet another run for the presidency in 2008, Roger Simon reports.

Ralph Nader says he is seriously considering running for president in 2008 because he foresees another Tweedledum-Tweedledee election that offers little real choice to voters. “You know the two parties are still converging — they don’t even debate the military budget anymore,” Nader said in a 30-minute interview. “I really think there needs to be more competition from outside the two parties.”

Even the possible entry of New York Mayor Michael Bloomberg into the race as an independent might not dissuade Nader. “He is interesting (but) unpredictable,” Nader said of Bloomberg. “I really like the stand he took against smoking, but he goes along with corporate welfare in New York and tax-funded stadiums. So he is unfinished in that way.”

It’s long been clear that Nader is motivated by ego rather than moving public policy. While there’s no doubt that Nader feels the Democrats are too pro-business and too soft on the environment, it’s manifestly obvious that both Al Gore and John Kerry were more likely to move things in a direction he preferred than George W. Bush and that his entry into the race would make it harder for the Democrats to win. He’d rather be talked about than advance his other agendas, though.

This is interesting as well:

While Nader praised two candidates who have almost no chance of winning their party’s nomination — Republican Ron Paul and Democrat Mike Gravel — he was severe in his criticism of Democratic front-runner Hillary Clinton. “She is a political coward,” Nader said. “She goes around pandering to powerful interest groups on the one hand and flattering general audiences on the other. She doesn’t even have the minimal political fortitude of her husband.”

Chris Lehane, who worked in Bill Clinton’s White House and Gore’s 2000 presidential campaign, said of a possible Nader candidacy: “His entry into the race, even to those who voted for him in 2000, would be just another vainglorious effort to promote himself at the expense of the best interests of the public. Ralph Nader is unsafe in any election.”

Lehane and I agree.

UPDATE: Reason’s Dave Weigel is surprised this story is getting so much attention, since Nader has said these things before. Further, he thinks a Nader candidacy will be, as it was in 2004, a non-factor:

The disgruntled voters on the right and in the middle are going to be looking at Bloomberg or, if the LP or a right-wing third party nominates a real candidate, one of those parties. (Someone who ran on the Constitution ticket with a few million and Pat Buchanan’s message from 2000 could play well with the irate anti-immigration sector of the GOP base.) If Cynthia McKinney actually runs and wins the Green nomination, there’s no doubt she’d get more votes than Nader.

There’s no doubt that, with the race starting this early, there’s plenty of time for niche candidates to emerge to exploit voter dissatisfaction with the major party nominees. Funding and ballot access are the keys there. Bloomberg has the advantage simply because of money an the UnityO8 “party” seems to be getting organized; conceivably, the two could marry up.

The Everything’s Bigger in Texas Edition OTB Caption Contest^TM is now over.

(AFP/Mehdi Fedouach)

The Winners:

First: The Man – Eat More Humans

Second: LJD – Speak softly, and carry a big c-ck.

Third(tie): Scott_T – Hello Butterball Help Line? So how many hours per pound do I cook a 1000-lb turkey?

Third(tie): charles austin – Bob soon learned what being truly henpecked really meant.

Honorable Mention:

Anderson- Kim Jong Il’s emissary knew, suddenly, two things: that the reports from the nuclear test site were true, and that he would never survive to report them to Dear Leader.

stillearly – Oh no, it’s Cynthia McKinney fully enraged and about to strike!

Timmer – Next on The Travel Channel: The truth behind why Zen Buddhists don’t eat meat.

FormerHostage – New Viagra tag-line: Feeling insecure about your cock size?

Rodney’s Bottom of The Barrel

Lord, when I said I wanted a bigger pecker this isn’t exactly what I had in mind.

In the end PETA decided it didn’t really find the ad offensive at all.

“Get offa Mork’s spaceship, Right Now!”

The Thursday contest has already borrowed Captain Jack’s compass.

Mickey Kaus thinks that, in today’s climate, the fact that the Foley sex scandal has broken four weeks before the election is good news for the GOP:

The Feiler Faster Thesis is the Republicans’ friend at this point. [...] There’s also the Densepack Theory–the anti-GOP media have launched so many damaging GOP stories–see Josh Marshall’s list– that they are all arriving at once and, like fratricidal incoming ICBMs, are knocking each other out of the news rather than destroying their target!

Mark Coffey makes a similar point, noting that the much-touted Dick Cheney hunting accident in February has been all but forgotten.

Interesting points, to be sure, but I think they’re wrong. On the surface, aside from the issue of whether Hastert and company covered up Foley’s crimes for political reasons, there’s no scandal here that touches the party. There are plenty of creeps on both sides of the aisle and I don’t hold Cynthia McKinney or Tom William Jefferson’s personal transgressions against the Democrats.

Like the drip-drip-drip of stories suggesting that George Allen is a racist, however, these stories feed into a pre-existing media meme. The Foley scandal may well crystalize in the public’s mind the idea that the Republican leadership is corrupt, hypocritical, and inept. Given how many loyal Republican pundits already thought that, it’s not a far leap to think that undecided voters (a/k/a “clueless morons”) might get the same idea.

Jim Addison is highlighting a report by blogger Antonio French that Claire McCaskill, the Democratic challenger for Jim Talent’s Missouri Senate seat, went all Kanye West at a public meeting.

In a spirited voice, she told them that she would do everything she could to make clear to every Democratic voter that “George Bush has no better friend than Jim Talent.”

McCaskill said she would remind people that “George Bush let people die on rooftops in New Orleans because they were poor and because they were black.”

Kevin Aylward, Addison’s publisher, e-mails, “In August, George Allen’s ‘Macaca’ comment made the front page of the Washington Post (more than once), and was the top midterm election story nationwide for nearly two weeks. Tuesday in Missouri, the Democratic candidate for U.S. Senate, Claire McCaskill accused the President of genocide on his own people.” And he notes that the press is totally ignoring the story, as evidenced by a GoogleNews search which reveals that a lone story in the St. Louis Post-Dispatch–itself a response to French’s report–is the extent of the non-blog coverage.

My initial response was skepticism, given that I have no basis for trusting French’s credibility. He provides an amateurish YouTube video from the meeting which, oddly, does not seem to include the incident in question:

Yet, the McCaskill camp does not seem to be denying the words, only the interpretation. From the Post-Dispatch story:

McCaskill’s spokeswoman Adrianne Marsh said her comment was referring to “what many people felt about the tragedy of the response to Katrina.”

“Claire believes the response was gross incompetence that turned tragic because so many people in New Orleans did not have the resources to help themselves,” Marsh added.

As Dean Esmay notes, such race-baiting “has wide currency in the black community.” Indeed, from the O.J. trial to the CIA plots to infect black people with AIDS and get them hooked on crack to the NAACP’s lynching ad to the rantings of Maxine Watts, Al Sharpton, and Cynthia McKinney, there is clearly a willingness to believe almost any charge made against white Republicans.

More than forty years after the Civil Rights Act of 1964 and the Voting Rights Act of 1965–and more than half a century after Brown v. Board of Education–there are some very deep wounds that have not healed. The GOP needs to do more. But it’s very hard to make much progress when black leaders, self-appointed and otherwise, continue to hurl such outrageous charges for cyncial purposes.

Former Atlanta mayor and U.N. ambassador Andrew Young has landed in hot water after making racist comments in an interview with a Los Angeles newspaper:

In an interview published in Thursday’s Los Angeles Sentinel, Young was asked to comment on whether he is concerned that Wal-Mart causes mom-and-pop stores to close.

“Well, I think they should; they ran the ‘mom and pop’ stores out of my neighborhood,” the Sentinel, a newspaper serving the African-American community, reported. “But you see, those are the people who have been overcharging us — selling us stale bread and bad meat and wilted vegetables. And they sold out and moved to Florida. I think they’ve ripped off our communities enough. First it was Jews, then it was Koreans and now it’s Arabs; very few black people own these stores.”

Both Frank Stephenson and Michael Munger suggest that the lack of outrage from the political left (when compared to that against George Allen for his “macaca” blunder this past week) is due to a double standard, whereby Democratic politicians get a “pass” for things that Republicans would not.

I’d argue, however, that Young is pretty much a marginal figure in contemporary American politics with no real history of racist comments or actions, albeit one with some influence in the African-American community; comparing him to Cynthia McKinney or Trent Lott, who have extensive, documented histories of racist and otherwise questionable actions in public office seems a bit extreme.

Indeed, the fact that Young was–until the incident–working on behalf of a group supporting Wal-Mart’s efforts to invest in inner-city communities would seem to make him an opportune target for those on the left.

Despite losing by an 18 percent (12,000 vote) margin, Cynthia McKinney wants a recount.

WaPo’s Jonathan Weisman sees a trend:

In the shadow of the Democratic Senate primary in Connecticut, angry voters in three states showed their discontent last night by unseating two incumbents and choosing a candidate who campaigned against his primary opponent’s bipartisan past. The defeat of Georgia’s outspoken Rep. Cynthia McKinney (D) and Michigan moderate Rep. John J.H. “Joe” Schwarz (R) appeared to confirm the strong headwinds that polls suggest members of Congress will face in November from an angry electorate looking for change.

Uh, against how many incumbents who won their primaries? Don’t they signal anything?

Oddly, since I tend to vote Republican, I have paid no attention to the Schwarz contest. I gather that he was, like Lieberman, defeated by a candidate more closely aligned with his party’s base.

McKinney is, well, McKinney. Slapping a police officer, making one outrageous statement after another, and an even nuttier dad making constant idiotic statements to the media were, shall we say, not helpful.

Now, I don’t doubt that there’s a strong anti-incumbent wind out there. But three losses easily explained by the idiosyncracies of the individual contests are hardly further evidence for it.

7:45: The polls are set to close in about 15 minutes here in CT but the general consensus is that it’s going to be a while until the results are known. In the meantime, I’ll be updating this post with all the info I can throw your way and probably some video highlights (or lowlights) from the cable news coverage too. For all matters related to Lieberman’s campaign website being down, there’s a seperate post on that here.

7:54: NBC30.com has video of both candidates making their final pleas to the voters of CT. The clips are interviews without audio of the questions being asked, but I think they’re still worth watching. Here’s Lieberman’s and here’s Lamont’s.

8:17: Kevin Rennie at The Hotline reports that the absentee ballot victories across CT seem to be going for Lamont.

8:25: Lieberman = 2907 (40%) Lamont = 4282 (60%) with 3% reporting.

8:32: Lieberman = 4586 (40%) Lamont = 6814 (60%) with 4% reporting.

8:43: Lieberman = 9,535 (44%) Lamont = 12,236 (56%) with 7% reporting.

8:53: Lieberman = 14,870 (44%) Lamont = 19,257 (56%) with 11% reporting.

9:03: Lieberman = 22,898 (44%) Lamont = 29,463 (56%) with 17% reporting.

9:12: Lieberman = 32,575 (45%) Lamont = 40,044 (55%) with 25% reporting.

BONUS VIDEO: Here’s a clip of Chris Matthews–in New Haven today covering the race–interviewing California Rep. Maxine Waters whom also is in CT stumping for Ned Lamont. After fumbling a question as to why she’s willing to campaign against Lieberman but not willing to campaign against Sen. Feinstein from her own state and whom also voted for the war, Waters proclaims that Lieberman “is the symbol of everything that’s wrong with the Democratic party.”

9:36: Lieberman = 64,056 (48%) Lamont = 69,466 (52%) with 50% reporting.

9:50: Lieberman = 89,226 (48%) Lamont = 96,364 (52%) with 69% reporting.

10:20: Lieberman = 108,683 (48%) Lamont = 116,387 (52%) with 81% reporting.

10:30: Drudge calls it for Lamont.

10:38: Allah Pundit’s liveblogging both CT as well as the GA race with McKinney and notes that she’s getting hammered. Meanwhile, although local WFSB is reporting that we’re still waiting on the Hartford precincts, this thing is dunzo. Looks like we’re going to see an Indy run by Lieberman.

BONUS VIDEO: Jesse Jackson at Lamont HQ says Ned’s a “bresh of freth air” and has the necessary spine to protect the American people from being “violated” by President Bush:

11:01: Lieberman = 125,427 (48%) Lamont = 133,801 (52%) with 93% reporting.

11:14: Lieberman just finished his concession speech and wasted no time announcing that he will run as an independent. Video on its way.

BONUS VIDEO: The Sharpster at Lamont HQ: “If Ned Lamont wins, it’s a wake-up call to Hillary Clinton who also voted like Lieberman for the war. She better keep jumping on Mr. Rumsfeld or some Ned Lamont may come jump on her.”

11:52: Here’s the video of Lieberman’s concession speech. I thought it was pretty good but, then again, I am a wingnut. It does, however, certainly foreshadow Lieberman’s upcoming strategy to position himself as the guy that will represent all of Connecticut rather than just left-wing Democrats.

12:17: Kos gloats that, “This is what people-power looks like, and it is changing the face of politics.” And he’s also advocating that the Liebs be excommunicated from the Democratic party for his decision to run as an “independent Democrat.”

8/9 6:34 a.m. (James Joyner): WaPo shows it Lamont 52, Lieberman 48 with 98% reporting.

8/9 8:17 a.m. (James Joyner): The Hartford Courant has essentially the same results with 99.6% in:

745 of 748 Precincts Reporting – 99.60%
Name Party Votes Pct
Lamont, Ned Dem 146,061 51.78
Lieberman, Joe (i) Dem 136,042 48.22

The (i) is for “incumbent,” incidentally, not, “Independent.” The latter has changed; the former may as well.

A D.C. grand jury today refused to indict Rep. Cynthia McKinney for her assault on a Capitol Police officer.

A District of Columbia grand jury has declined to return an indictment against U.S. Rep. Cynthia McKinney, D-Georgia, accused of assaulting Capitol Police Officer Paul McKenna in an April altercation. An incident report filed last month by the Capitol Police said McKenna was “physically assaulted” by McKinney, who hit him with a “closed fist.” The confrontation occurred at a security checkpoint in a congressional office building after McKenna failed to recognize the six-term Georgia Democrat and tried to stop her from bypassing a metal detector, which members of Congress are allowed to do.

Hardly a shocker. This is the same jury pool that acquitted Marion Barry on two sets of felony charges and then reelected him twice.
________

Related:

McKinney Plea Deal May Be in Works (Joyner)
McKinney Sponsors Bill Honoring Capitol Police (Joyner)
Can Cynthia McKinney be Arrested? (Joyner)
McKinney Case Going to Grand Jury (Joyner)
DeLay Threatens Ethics Charges Against McKinney (Joyner)
Cynthia McKinney Arrest Sought by Capitol Police (Joyner)
McKinney Plays the Race Card (Verdon)
Our Loonies Versus Their Loonies (Joyner)
McKinney Back to Congress (Joyner)

Federal prosecutors are trying to work out a deal with Rep. Cynthia McKinney in the case of her assault of a Capitol Hill cop.

Federal prosecutors investigating the confrontation between Rep. Cynthia McKinney of Georgia and a Capitol police officer have been talking privately with McKinney’s office in hopes of resolving the case without the spectacle of an indictment and trial, officials familiar with the talks say.

Prosecutors for several weeks have been carrying on confidential discussions with the DeKalb County Democrat in what they characterized as an effort to reach a plea agreement, even as they were presenting evidence in the March 29 incident to a grand jury, said the officials, who spoke on condition of anonymity.

The grand jury has not yet decided whether McKinney should be charged, an official familiar with the proceedings said, and no decision is expected this week. The prosecutors have subpoenaed at least six witnesses to appear before the jury over the last two months.

McKinney’s office rejected claims that there have been discussions of a plea agreement, saying the congresswoman has not been charged with anything and may never be, so there’s no plea to negotiate. “At this time, I have no comment as I am unaware of any ‘legal case’ regarding Ms. McKinney and [the] March 29 incident,” William Moffitt, one of McKinney’s lawyers, said in an e-mailed statement.

Perhaps Moffitt should read the blogs. We’ve been talking about it for weeks.

________

Related:

McKinney Sponsors Bill Honoring Capitol Police (Joyner)
Can Cynthia McKinney be Arrested? (Joyner)
McKinney Case Going to Grand Jury (Joyner)
DeLay Threatens Ethics Charges Against McKinney (Joyner)
Cynthia McKinney Arrest Sought by Capitol Police (Joyner)
McKinney Plays the Race Card (Verdon)
Our Loonies Versus Their Loonies (Joyner)
McKinney Back to Congress (Joyner)

Update: Nothing to see here. Just a congressman unable to differentiate the sound of construction machinery from gunfire. Details below.

OTB roving correspondent Richard Gardner emails he’s seeing television reports about shots being fired at the Rayburn Building on Capitol Hill.

Nothing yet online except this blurb at YahooNews: “BREAKING NEWS: U.S. Capitol locked down after reports of gunfire in a House office building – AP.”

CNN has a similar banner:

Update: AP is starting to get reporting out.

Police sealed off the Capitol on Friday after receiving reports of gunfire in a House office building across the street. Capitol police are investigating “the sound of gunfire in the garage level of the Rayburn House Office BHuilding,” said an announcement on the internal Capitol voice alarm system.

The Senate was in session at the time, but the House was not.

Update: Richard notes in the comments, “This is being turned into 24/7 coverage, lots of words, few facts.” Rick Calvert is liveblogging the television accounts.

Update: Rep. Jack Kingston’s interns are blogging from the inside. It appears that there is no immediate danger.

Update: Michael Demmons wonders, “Did Cynthia McKinney finally crack?” Heh.

Update: Apparently, a Kingston staffer got the vapors and was taken to the hospital.

The Capitol Police have scheduled a press conference for 1:30 Eastern. One suspects it will be carried live by everybody.

Update: It turns out the “gunshots” were construction tools.

A phone call reporting gunfire — apparently a false alarm — led police to briefly shut down the Capitol Friday and search the largest House office building floor by floor as staff members and a few lawmakers were kept inside. Officers with rifles stood by outside, and ambulances arrived. But in the end police said there were no arrests, injuries or confirmation of any gunfire in the garage of the Rayburn House Office Building.

The report originated with Rep. Jim Saxton, R-N.J., his press secretary said. Saxton heard what he thought were gunshots and had a member of his staff call Capitol Police, said spokesman Greg Keeley.

Capitol Police spokeswoman Sgt. Kimberly Schneider said police were investigating a “plausible explanation” that the day’s events resulted from noise made by construction workers in the Rayburn garage. “In doing their routine duties, they made some sort of a noise that sounded like shots fired. So it was a valid call,” she said.

On high alert, police lined the street between the Capitol and the Rayburn building, rifles prominently displayed, and four ambulances, two firetrucks and other emergency vehicles were on the scene. Police methodically searched the sprawling building, where congressional staff members had locked themselves into their offices as a precaution. “Right now we want to err on the side of caution,” Schneider said before the all-clear, which came at mid-afternoon, some four hours after the first report. “Lives could be at risk. If we have a gunman in the building we certainly want to find him. It’s premature to assume that it may not be a gunman.”

Saxon is going to go down in the Annuals of Congressional Courage along with Senator Mark Dayton, who closed his office the month before the 2004 elections based on a non-existent terrorism scare.

Update: See Jim Saxon Scared of Tools for further updates.

The That’s Not the Longest Yard Edition OTB Caption Contest^TM is now over.

(AFP/Paul J. Richards)

Winners:

First: charles austin – Ned Beatty picks his canoe partner for Deliverance II: The Rio Grande.

Second: Hermoine – “This here’s a boring border, Sir. We mostly watch American Idol, look at girlie magazines and practice our shooting for when Cheney visits.”

Third: spacemonkey – Officer: President bush, this is Juan, he came to America to do the job Americans want you to do. Namely, seal the border.

Honorable Mention:

Gollum – I eat breakfast 300 yards from men who are trained to kill me, so don’t think for one second that you can come down here, flash the Seal of the President of the United States of America, and make me nervous.

Hodink – “You take a right at the organ pipe cactus, go back there a bit and everybody just goes on the barrel cactus.”

Donald Sensing – “Well, actually, Mr. President, they can hide real good ’cause most of ‘em is only about this tall.”

DaveD- “And where you’re standing, Mr. President, is where we’ll be putting up the sign that says ‘Back Of The Line Starts Here’”.

Best Movie Quote:

Maniakes – “What we have here is a failure to communicate.”

Rodney’s Bottom of The Barrel

As I went walking I saw a sign there
And on the sign it said “No Trespassing.”
But on the other side it didn’t say nothing,
That side was made for you and me. — (Woody Guthrie)

I eat breakfast 300 yards from men who are trained to do my job for a tenth of what I make, so don’t think for one second that you can come down here, flash the Seal of the President of the United States of America, and make me nervous. (Inspired by Gollum)

This land ain’t your land, this land is my land
I’ve got a shotgun, and you ain’t got one
I’ll blow your head off if you don’t get off
This land is private property; — (not credited)

“Say… how many hard boiled eggs you think you can eat?”

The The Thursday contest is already giving Cynthia McKinney a body cavity search.

Another Gone Hollywood Caption Contest is in a squeeze as well

Nancy Pelosi’s shrewd move in asking Rep. William Jefferson, who the FBI has on video taking bribes and had $90,000 stashed in his freezer, to resign has been met with open revolt from the Congressional Black Caucus.

Furious black lawmakers, rallying behind Rep. William Jefferson (D-La.), were pulled back from the brink of open revolt against House Minority Leader Nancy Pelosi (D-Calif.) in an emergency meeting with her yesterday. The meeting with a handful of CBC members was called after Pelosi wrote the embattled lawmaker, who is at the center of a massive bribery scandal, a curt note requesting his immediate resignation from the powerful Ways and Means Committee. Outraged that one of its members was being picked on even though he has not been charged with a crime, the Congressional Black Caucus had intended to issue a defiant statement against their leader but agreed after the meeting to pause, at least briefly, for reflection.

Earlier this week, Pelosi approached Jefferson and told him that she thought he should resign, according to a Democratic aide. Later, at the Democratic caucus meeting yesterday morning, she took him into a side room and told him that she had prepared a letter calling on him to resign the committee seat and that she would allow him one hour to withdraw gracefully before she sent it, according to the aide. In both instances, Jefferson remained defiant.

Pelosi’s one-sentence missive to Jefferson called on him to vacate his committee seat “in the interest of upholding the high ethical standard of the House Democratic Caucus.” Jefferson promptly refused, calling her request “discriminatory” and “unprecedented,” and suggested that she was employing a double standard by failing to ask other lawmakers facing ethics questions to relinquish their committee assignments. Rep. Alan Mollohan (D-W.Va.) has come under fire for earmarks he secured through his seat on the Appropriations Committee.

[...]

The CBC’s chairman, Rep. Mel Watt (D-N.C.), engaged in a heated argument with Pelosi on the House floor Tuesday afternoon after Watt heard reports that Pelosi was considering calling for Jefferson’s ouster, according to one witness. Members of the CBC are expected to confront Pelosi today in a meeting that was previously scheduled to address separate concerns about Democratic Congressional Campaign Committee Chairman Rahm Emanuel (D-Ill.). That meeting is now likely to focus more on Jefferson, a Democratic aide said.

With 43 members, the CBC is a formidable force in the 202-member Democratic caucus and one Pelosi is unusually reluctant to antagonize. Should Democrats take the House, the CBC would control four, and possibly five, committee chairmanships. [emphasis added]

[...]

Most lawmakers would not comment afterwards, but a CBC aide summed up some members’ frustration, saying, “Congresswoman Pelosi, by preemption without any legal justification, has now created a new precedent for how members are going to be treated. Unfortunately, she’s chosen to single out an African-American for this honor.” Then the aide added an electoral threat, saying, “The African-American community, which overwhelmingly backs the Democratic Party, will not take this lightly. I hope she enjoys being minority leader.”

Amazing. The Democrats are, understandably, trying to attack the Republicans as the party of corruption after a series of scandals. The CBC’s members have done already done much to undermine that, notably the Jefferson and Cynthia McKinney scandals. And now this.

If the GOP isn’t already sending these guys money, they need to.

________

Related:

• Jefferson Office Search Not Violation of Constitution
• Trampling the Constitution (Steve Verdon)
• Hastert Demands FBI Return Documents in Jefferson Case
• Congressmen Question FBI Raid on Jefferson’s Office
• Jefferson Takes Bribes on Video, Cash in Freezer
• Jefferson Seeks to Block Warrant Release
• Louisiana A Swamp of Corruption
• Katrina: Louisiana Congressman William Jefferson Used National Guard to Retrieve Belongings

This weekend’s raid on the Capitol Hill office of Rep. William Jefferson, who the FBI filmed taking bribes last summer and whose freezer was full of the proceeds of same, has lawmakers on both sides of the aisle screaming about Separation of Powers.

WaPo fronts a story by Dan Eggen and Shailagh Murray.

An unusual FBI raid of a Democratic congressman’s office over the weekend prompted complaints yesterday from leaders in both parties, who said the tactic was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government.

[...]

The Saturday raid of Jefferson’s quarters in the Rayburn House Office Building posed a new political dilemma for the leaders of both parties, who felt compelled to protest his treatment while condemning any wrongdoing by the lawmaker. The dilemma was complicated by new details contained in an 83-page affidavit unsealed on Sunday, including allegations that the FBI had videotaped Jefferson taking $100,000 in bribe money and then found $90,000 of that cash stuffed inside his apartment freezer.

Republican leaders, who previously sought to focus attention on the Jefferson case as a counterpoint to their party’s own ethical scandals, said they are disturbed by the raid. Senate Majority Leader Bill Frist (R-Tenn.) said that he is “very concerned” about the incident and that Senate and House counsels will review it.

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. “The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case,” he said in a lengthy statement released last night. “Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress,” he said. “Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years.”

House Minority Leader Nancy Pelosi (D-Calif.) said in a statement that “members of Congress must obey the law and cooperate fully with any criminal investigation” but that “Justice Department investigations must be conducted in accordance with Constitutional protections and historical precedent.”

[...]

Attorney General Alberto R. Gonzales, asked about the raid during an unrelated news conference in Washington, declined to discuss the case in detail but said “the executive branch intends to work with the Congress to allay” any concerns. “I will admit that these were unusual steps that were taken in response to an unusual set of circumstances,” he said. “I’ll just say that.”

[...]

Legal experts were divided on the legality and propriety of the FBI’s raid, but many said that it could raise serious evidentiary problems for prosecutors at trial. In scores of cases of alleged congressional wrongdoing, federal prosecutors and FBI agents have most commonly sought to issue subpoenas for documents rather than conducting an impromptu raid on congressional property, experts said. At issue is the “speech or debate” clause of the Constitution — language intended to shield lawmakers from intimidation by the executive branch. Historically, courts have interpreted the clause broadly, legal experts said.

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line “on the edge of a constitutional confrontation,” called the Saturday night raid “the most blatant violation of the Constitutional Separation of Powers in my lifetime.” He urged President Bush to discipline or fire “whoever exhibited this extraordinary violation.”

Many legal experts and defense lawyers agreed with Gingrich. Charles Tiefer, a University of Baltimore law professor who served as solicitor and deputy general counsel of the House for 11 years, called the raid “an intimidating tactic that has never before been used against the legislative branch.” “The Framers, who were familiar with King George III’s disdain for their colonial legislatures, would turn over in their graves,” Tiefer said.

Washington defense lawyer Stanley M. Brand, a former general counsel for the House who has represented numerous lawmakers accused of wrongdoing, also questioned the government’s strategy. “This is really an over-the-top move, and it could create some real blow-back problems for them in the courts,” he said.

But Viet D. Dinh, a former assistant attorney general in the Bush administration who is now a Georgetown University law professor, said that “the raid on his offices itself does not define a constitutional issue.” The constitutional privilege for lawmakers does not “expand to insulate everything that goes on in a congressional office, especially if there’s allegations of abuse of process or bribery,” Dinh said. “. . . The fine line is whether or not it relates to a legislative process or not, not whether they’ve raided his office.”

A NYT piece by Carl Hulse focuses on the political implications of Jefferson’s case vis-a-vis the Democrats’ strategy of running against a corrupt GOP. On this issue, he adds,

For all the intense partisanship that has surrounded the wave of legal and ethical cases on Capitol Hill, the Jefferson case brought some Democrats and Republicans together on one point: that the all-night search conducted by the F.B.I. raised questions about whether the executive branch had violated the constitutional doctrine of separation of powers by carrying out a raid on the official office of a member of Congress.

Senator Bill Frist of Tennessee, the majority leader, said Monday that he had concerns about the constitutionality of the search and was seeking a legal opinion. Representative Nancy Pelosi of California, the minority leader in the House, said that “Justice Department investigations must be conducted in accordance with constitutional protections and historical precedent.” Some House Republicans said they were also disturbed by the way the search was handled. “I think it is really outrageous,” said Representative David Dreier, the California Republican who is chairman of the Rules Committee.

This level of bipartisan outrage on the part of Congress is a good thing. The Framers intended for all branches to be intensely jealous in guarding their institutional perquisites and their unity on that issue even in the face of aggregious conduct on the part of one of their own is evidence that Separation of Powers is alive and well.

In this case, though, I believe they are wrong. Article I, Section 6 specifies:

The Senators and Representatives . . . 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.

Clearly, the Post’s “legal experts” notwithstanding, the “Speech or Debate” clause is not pertinent here. Jefferson is being investigated for something clearly separate from speech he made on the floor of Congress or anything remotely related. FindLaw has a superb discussion on the litigation surrounding the Clause. Relevant excerpts:

The protection of this clause is not limited to words spoken in debate. ”Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.”’ 385 Thus, so long as legislators are ”acting in the sphere of legitimate legislative activity,” they are ”protected not only from the consequence of litigation’s results but also from the burden of defending themselves.” 386 But the scope of the meaning of ”legislative activity” has its limits. ”The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” 387 Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties flows from a determination that a challenged act is within the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.

Unless one is going to argue that taking a bribe in order to vote a certain way constitutes “performance of legislative duties,” this clause is not implicated. Indeed, as the discussion goes on to note, even republication by a Member of speech made on the floor of Congress in another forum nor mailings to constituents are protected under this immunity because “neither are essential to the deliberations of the legislative body nor part of the deliberative process.”

On the other hand:

[I]n United States v. Johnson, 397 the Court voided the conviction of a Member for conspiracy to impair lawful governmental functions, in the course of seeking to divert a governmental inquiry into alleged wrongdoing, by accepting a bribe to make a speech on the floor of the House of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial. It was this examination into the context of the speech–its authorship, motivation, and content–which the Court found foreclosed by the speech-or-debate clause. 398

However, in United States v. Brewster, 399 while continuing to assert that the clause ”must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,” 400 the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ”influenced in his performance of official acts in respect to his action, vote, and decision” on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ”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.” 401 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution. 402

Applying in the criminal context the distinction developed in the civil cases between protected ”legislative activity” and unprotected conduct prior to or subsequent to engaging in ”legislative activity,” the Court inGravel v. United States, 403 held that a grand jury could validly inquire into the processes by which the Member obtained classified government documents and into the arrangements for subsequent private republication of these documents, since neither action involved protected conduct. ”While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” 404 [emphases added]

Further, as discussed in the McKinney case, the “privileged from Arrest” reference does not apply. First, it is preceded by “except Treason, Felony and Breach of the Peace.” He is being accused, with incredibly good cause, of a Felony. Further, as interpreted by the Courts,

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ”treason, felony or breach of the peace” is interpreted to withdraw all criminal offenses from the operation of the privilege. 379

So, while I understand and applaud Members for standing up for the power of their office, they are almost assuredly wrong in this instance.

Update: The anxiety over Separation of Powers in this instance seems to stop at the doors of the Capitol.

Michael Galien takes the logical stance that, “At the moment a Rep. is considered a suspect of criminal investigation, an independent judge signs a warrant, it seems logical that the FBI should be able to ‘raid’ that Rep’s office.”

Kevin Drum is not impressed, either: “Dude. They’ve got videotape. It’s time to resign.”

Glenn Reynolds provides a libertarian take:

The separation of powers argument seems to be pretty weak to me: The actual scope of Congressional immunity under the speech and debate clause is quite narrow (narrower, oddly, than the judically-created immunities enjoyed by judges and prosecutors) and certainly doesn’t include immunity from search in a bribery case.

At any rate, members of Congress who are offended by an unannounced late-night raid on an office might profitably be asked what they think about late-night unannounced raids on private homes, which happen all the time as part of the Congressionally-mandated War on Drugs.

Heh. Indeed.

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Related:

Jefferson Takes Bribes on Video, Cash in Freezer
Jefferson Seeks to Block Warrant Release
Louisiana A Swamp of Corruption
Katrina: Louisiana Congressman William Jefferson Used National Guard to Retrieve Belongings