The Rule of Law:
Limits of Congressional Rights
EDITORIAL, NYTimes on
the Web, July 12, 2006
When the F.B.I. searched the offices
of William Jefferson, the scandal-plagued Democratic congressman from Louisiana,
it produced a rare moment of bipartisanship. Leaders of both parties
insisted that the search infringed on the rights of Congress. This week,
Thomas Hogan, a federal district court judge in Washington, gave Congress a
much-needed reminder that no one is above the law.
The search arose from an investigation of charges that Representative Jefferson
helped a private company and thereby enriched himself. The agents had a
valid warrant, and used procedures that minimized the chance of taking unrelated
legislative materials. Mr. Jefferson objected and demanded that the seized
material be returned. House Speaker Dennis Hastert and Minority Leader
Nancy Pelosi issued a rare joint statement supporting him.
Mr. Jefferson maintained that members of Congress should be told in advance
about searches and allowed to remove material they considered privileged.
A search is, of course, considerably less effective if the target is allowed to
remove what he likes before the police arrive.
Judge Hogan rightly ruled that the search did not violate the “speech or debate”
clause of the Constitution, which protects members of Congress when they are
engaged in core legislative functions, like speaking on the floor or traveling
to a Congressional session. That provision does not provide immunity for
the sort of activities at issue in this investigation.
The court also rebuffed Mr. Jefferson’s claim that the search violated
separation of powers principles. The founders wanted the three co-equal
branches to have a sphere of autonomy, but they also wanted each to serve as a
check on the other two. When executive branch investigators carried out a
search with a judicially approved warrant, checks and balances were working just
right.
The power to investigate Congress could be abused. In that case, Congress
would have stronger legal claims, and it could use its own authority, including
the power of impeachment, to protect itself. But the investigation of
Representative Jefferson is not a power grab. It is a run-of-the-mill
criminal case, and as the Supreme Court has said, members of Congress are not
“super-citizens, immune from criminal responsibility.”
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