No one seriously believes that William Jefferson is going to survive the political train wreck he has made of his congressional career. Even the notoriously forgiving voters of New Orleans – who just reelected gaffe-prone Mayor Ray Nagin – are not going to be comfortable with a congressman who hid $90,000 in cash in his refrigerator and got caught on an FBI tape talking about taking bribes.
The question now is whether the system of checks and balances established by the founders in 1787 will be another victim of the train wreck.
When Federal Bureau of Investigation agents raided Jefferson’s suite of offices in the Rayburn House Office Building, they committed an act unheard of even in the darkest days of the Republic. On orders from the executive branch, federal agents entered the office of a member of the legislative branch and spent hours going through that office and removing materials they deemed necessary to an investigation.
Even House Speaker Dennis Hastert, the Illinois Republican who has been no great friend of the Constitution, awakened from the comatose state that has usually characterized his response to White House assaults on the system of checks and balances.
Hastert boldly defended the founding document and the Congress he is charged with maintaining as a separate and equal branch of government. The Speaker reportedly telling the president that the raid on Jefferson’s office was a direct violation of the Constitution – in general, of the principle of separation of powers, and in particular of the protections afforded the legislative branch by the “Speech and Debate” clause of the Constitution.
In a lengthy statement of concern, Hastert argued that, “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. 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. 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.”
Is this just a tempest in Teapot Dome that is our corrupt Capitol? No. Not even the most Constitutionally-abusive administrations dared go so far as to raid congressional offices. It is true that John Adams, in his push to narrowly define the Constitution at the outset of the American experiment, did jail a congressional critic, Vermont Representative Matthew Lyon, for suggesting that the second president had displayed “a continual grasp for power [and] unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” But Adams, who would be voted out of office for his disregard Constitution, never dared dispatch armed officers to the Capitol.
Stung by the criticism of its overreach, the Bush administration has scrambled to suggest that what is at issue is merely the wrongdoing of one congressman. But they conveniently neglect to address the precedent that will be established if Congress fails to challenge the White House and the Department of Justice.
If this was just about Jefferson, the raid would not have stirred an outcry. Every indication is that the Louisianan congressman has betrayed his oath of office and abused the privileges of his position in ways that would make Tom DeLay blush.
But this is not just about Jefferson, who would be in plenty of trouble even without whatever information might have been garnered from the raid on his office. Remember, the FBI has the congressman on tape making classically incriminating comments.
This is about an executive branch that has already pushed the limits of its power on issues ranging from invading and occupying countries without a declaration of war to spying on Americans without a warrant and is now undermining whatever remains of the Constitutionally-mandated separation of powers between the White House and the Congress.
Attorney General Alberto Gonzales, the former White House counsel who never encountered a law he wasn’t willing to break in order to extend the powers of the president he has served far more diligently than he has ever served his country, can described the search as “a unique step in response to a unique set of circumstances.”
With all due respect to Gonzales, the attorney general has a troubling track record of repeatedly responding to “unique sets of circumstances” in a manner that shreds the Constitution. And he has surely done so in this case.
Instead of working with congressional authorities, Gonzales got a judge to authorize the raid and, for the first time in the American history sending agents of the executive branch into action against a member of the legislative branch.
To their credit, Republican leaders of the House have reacted with appropriate fury.
Speculating about “whether people at the Justice Department have looked at the Constitution” lately, House Majority Leader Rep. John Boehner, R-Ohio, declared that “Congress will clearly speak to the issue of the Justice Department invasion of the legislative branch.”In explaining the character of that defense, Boehner said, “I’ve got to believe at the end of the day it’s going to end up across the street at the Supreme Court. I don’t see anything short of that.”Hastert left no doubt that he saw the need to address the issues raised by the raid as essential to the maintenance of the provisions of the Constitution written to protect the independence of the Congress.
“The Founding Fathers were very careful to establish in the Constitution a Separation of Powers to protect Americans against the tyranny of any one branch of government. They were particularly concerned about limiting the power of the Executive Branch,” explained the speaker. “Every Congressional Office contains certain Legislative Branch documents that are protected by the Constitution. This protection-as the Supreme Court has repeatedly held-is essential to guarantee the independence of the Legislative Branch. No matter how routine and non-controversial any individual Legislative Branch document might be, the principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech or Debate clause of the Constitution must be respected in order to prevent overreaching and abuse of power by the Executive Branch.”
Hastert needs to wage this battle. And he ought not be mocked for the seriousness with which he has approached it.
This is an essential fight over whether a president and his minions can do as they please. To be sure, in this dark interregnum, it is not the only fight, as has been well noted by Senator Russ Feingold, D-Wisconsin, Congressman Maurice Hinchey, D-New York, and others in their struggle to hold this administration to account for its illegal domestic surveillance program. But if the legislative branch does not push back at the point when agents of the executive branch are raiding the offices of congressmen without the ascent of the Congress, then surely there is no chance that the separation of powers protection will be asserted with regard to the many other Constitutional abuses committed by this administration.