Above the Law?
Jefferson, an eight term United States House member and attorney with expertise in information technology, has been under FBI surveillance for more than a year with the focus of the investigation being bribes Jefferson has allegedly received and other misconduct in office. Allegedly, Jefferson has been using his office to unlawfully influence high tech enterprises in foreign nations and accepting bribes to exercise such influence. The FBI became involved in the matter after they were contacted by a wealthy Virginia businesswoman who was concerned that millions of dollars Jefferson had convinced her to invest in a Louisville, Kentucky tech business might be at risk of being lost. In addition to this a former president of the tech company known, as iGate, and a former staffer for Representative Jefferson had previously plead guilty to bribing Jefferson to promote iGate’s interest in foreign countries.
During their investigation, the FBI videotaped the congressman accepting a briefcase containing $100,000. A search of Jefferson’s residence, pursuant to a search warrant and subsequent to the videotaped exchange, turned up approximately $90,000 in a freezer in Jefferson’s home. The payment the FBI videotaped was coordinated by the Bureau and was made to have Jefferson influence the foreign nations to use iGate, using his office to do so. Essentially the FBI’s position is that Jefferson was observed taking a bribe.
Following this search, FBI agents entered Jefferson’s House Congressional office and conducted a search pursuant to a valid search warrant. This was the first time the FBI had ever searched a congressional office.
Then the matter became really interesting.
The United States Congress is a bipartisan body. Democrats and Republicans go about their daily business forwarding the agendas of their individual party and frequently criticize the other party on a great number of issues. It is all too common to have one party latch onto the misfortune of a member of the opposite party and attempt to use the situation against the opposing party as a whole. When the story on the search of Jefferson’s office broke, with the evidence collected against Jefferson concerning his alleged illegal conduct, it was all but a given that the House Republicans would be all over the matter in an effort to bring attention to the Democrats who have frequently questioned the ethics of the Republicans. However, much to everyone’s surprise, that didn’t happened.
Following the search of Jefferson’s office, House Democrats and Republicans rallied together in a bipartisan fashion to condemn not the Congressman allegedly involved in illegal and unethical behavior, but the FBI, Department of Justice and the Executive Branch as a whole for their investigation.
House Speaker J. Dennis Hastert (R-Ill.) issued a statement following the search saying, “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.”
Even former House Speaker, Newt Gingrich (R-Ga.), in an email sent to Hastert called the raid a blatant violation of the Constitutional Separation of Powers.
Essentially the House Republicans were complaining that the search was little more than the Executive Branch interfering in the House of Representative’s ability to exist as a separate branch of the government.
But what is this separation of power the House of Representatives have called into question?
The United States Constitution established three separate governmental bodies, the Executive which includes the President and offices such as the Justice Department of which the FBI is a part, the Legislative which includes bodies such as the United States House and Senate and the Judiciary which includes the trial and appellate level courts. The simple purpose behind this arrangement is to spread the power out the power of the federal government so as to avoid a situation where one body or one person could assume complete control. The bodies exist separately, each performing functions critical to the operation of the government and our country as a whole.
Specifically the members of the House seem bothered by what they claim is an infringement on the Speech and Debate provision of the United States Constitution. This provision, which reads as follows-
“The Senators and Representatives âÂ?¦. 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.”
By appearance, members of the House seem to be advocating the position that if you are a House member and something is physically in your Congressional office, then it falls under the Speech and Debate Clause and you are essentially above the law since to search the office could potentially uncover matters related to legitimate Congressional dealings.
Following the search of Jefferson’s office the FBI removed a number of documents as part of their investigation. In response to this, the House leadership demanded the documents immediately be returned. While the act of demanding the return of evidence in a criminal investigation clearly infringed upon the function of the Executive Branch by the Legislative Branch, those demanding the documents didn’t seem to let this bother them.
F. James Sensenbrenner, Jr. (R-Wis.) is the chairman of the House Judiciary Committee and has wasted no time in calling for hearings to address how the FBI allegedly overstepped their authority in conducting the raid and allegedly how the Executive branch has infringed upon the Legislative Branch. The first of what Sensenbrenner has said will be at least four hearings occurred on Tuesday, May 30, 2006; however, news reports indicate that the experts who appeared before the committee were there to primarily echo the opinions and statements the House leadership has made concerning this matter. It appears nothing substantive came from the hearings. It is interesting to point out that recently Sensenbrenner has been asked in the recent past to conduct hearings on a number of events, torture of alleged terrorist, warrantless eavesdropping and the leaking of a CIA operative’s cover – just to name a few. He declined on all of these; however, it seems that when an investigation into conduct that by all accounts seems illegal and unethical happens in Congress, the course of action for Congress is to launch an investigation into the law enforcement body conducting the investigation and not the Congressional conduct that by all accounts appears somewhat beyond question.
The Democratic leadership in the House has even hinted that impeachment proceedings against the Attorney General may be considered.
So to have raised all of this attention, the FBI must have done something terribly egregious. In a nutshell, this matter started out when the FBI began an investigation of an allegedly corrupt member of the House of Representatives. Following the observation of this member allegedly accepting a bribe, and based upon other surveillance of this member, the FBI completed an application for a search warrant. This application was completed by a near 20 year veteran agent and the affidavit accompanying the application was in excess of 80 pages. Remember, police need a warrant to conduct searches pursuant to the Fourth Amendment to the Constitution – they can not just barge into an area they want to search. This application was submitted to a federal judge who independently reviewed it and issued the warrant which authorized the search of Jefferson’s office. Essentially, the FBI made sure that all was in order before conducting the search. However, many members of the House remain quite upset saying essentially that if it is in a House office, it is off limits.
So while the House promises hearings and legislation to prohibit this conduct in the future, what is the United States Senate, the other body of the Legislative Branch saying? Essentially the exact opposite of the House, Senate Majority Leader, Bill Frist (R-Tenn.) has said his review of the applicable provisions of the United Constitution has satisfied him that the FBI acted appropriately when they conducted the search. The assistant Minority Leader of the United States Senate, Richard J. Durbin (D-Ill.) has also questioned whether the “Speech and Debate” provision of the Constitution could be stretched to include protection in this situation.
When the House leadership learned of the seizure of Jefferson’s documents and demanded their return, the President ordered the documents sealed for 45 days while the situation plays out. This came in response to calls from House leaders to return the documents which led the Attorney General and Director of the FBI to issue statements that they would resign were they ordered to return the documents.
Where is Representative Jefferson in all of this? Soon after all of this came to light, Jefferson was asked to step down from his position on the House Ways and Means Committee. He refused and remains in office and on the committee. Interesting enough while Jefferson’s conduct is doing nothing to help his appearance of guilt, it is interesting to note that he could have prevented all of this from happening. Prior to securing a warrant to search his home and office, the FBI sent a subpoena requesting certain documents, likely the same documents which were seized in the search. Jefferson ignored the subpoena and in doing so gave the FBI a choice – accept that he would not comply with the subpoena, or if the documents were important, get a search warrant. Having no choice, the FBI followed the letter of the law and secured a subpoena.
This scandal with Jefferson proves what many have already speculated. No matter how much rhetoric Congress gives to ethical standards, the question of ethics in the House is really a line that can be moved to fit the situation. At least that is the impression that the House is giving.
It remains to be seen how this situation will play out; however, it is safe to say that the FBI will not likely back down and if Jefferson is charged with a crime, it is also unlikely that fellow members of the House will rally to his aid.
The House leadership, as they conduct their hearings, continues in their position that what the FBI did was unconstitutional and could cause a constitutional crisis. Partially, they are correct. A constitutional crisis will most definitely occur if the legislative branch allows the leadership of the House of Representatives to bully them into halting the investigation thereby effectively placing the members of the House above the law.
