Congressmen Question FBI Raid on Jefferson’s Office
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.