FBI Searches and "Separation of Powers"
Wednesday May 31, 2006
Category: Crimes and Punishments
Kathy Gill writes on the FBI's recent search of the office of Rep. William Jefferson (D-LA), who has allegedly been videotaped taking $100,000 in bribes.
House speaker Rep. Dennis Hastert (R-IL) and minority leader Rep. Nancy Pelosi (D-CA) have joined forces and condemned the search--the first search of a congressional office in U.S. history--as an unconstitutional breach of "separation of powers."
They're wrong.
The relevant constitutional statutes defining separation of powers can be found in Article I, defining the role of Congress; in Article II, defining the role of the executive branch; and in Article III, defining the role of the judiciary. As you can see for yourself, none of the three articles in any way suggest that congressional offices have any privileged status protecting them from ordinary search warrants.
The real constitutional problem, from my perspective, is that in 219 scandal-filled years there has been no search warrant drafted affecting congressional offices. This suggests a pattern of inappropriate deference to legislative privilege that can only encourage corruption, and implies that elected officials are above the law. Are we only now learning the lessons of Watergate?
Attorney General Alberto Gonzales has threatened to resign should the Bush administration give in to congressional pressure and return material recovered in the search. While Attorney General Gonzales has given civil libertarians a great deal to complain about in recent years, his position in this case is one that appears to be entirely consistent with the Constitution--and a position that is absolutely necessary, if we aim to reduce corruption.
Assuming racial profiling and partisan intimidation have not played a role in the investigation, there is no obvious civil liberties violation in this case. The FBI has gone through the proper channels and obtained an ordinary warrant allowing them to search the office of a citizen accused of a felony. The fact that this citizen happens to be a member of the House of Representatives, and that his office happens to be located in the Capitol Building, is completely irrelevant. His citizenship is no better than ours, and he--like all elected officials--should be subject to the same indignities faced by his constituents.
See also:
Kathy Gill writes on the FBI's recent search of the office of Rep. William Jefferson (D-LA), who has allegedly been videotaped taking $100,000 in bribes.
House speaker Rep. Dennis Hastert (R-IL) and minority leader Rep. Nancy Pelosi (D-CA) have joined forces and condemned the search--the first search of a congressional office in U.S. history--as an unconstitutional breach of "separation of powers."
They're wrong.
The relevant constitutional statutes defining separation of powers can be found in Article I, defining the role of Congress; in Article II, defining the role of the executive branch; and in Article III, defining the role of the judiciary. As you can see for yourself, none of the three articles in any way suggest that congressional offices have any privileged status protecting them from ordinary search warrants.
The real constitutional problem, from my perspective, is that in 219 scandal-filled years there has been no search warrant drafted affecting congressional offices. This suggests a pattern of inappropriate deference to legislative privilege that can only encourage corruption, and implies that elected officials are above the law. Are we only now learning the lessons of Watergate?
Attorney General Alberto Gonzales has threatened to resign should the Bush administration give in to congressional pressure and return material recovered in the search. While Attorney General Gonzales has given civil libertarians a great deal to complain about in recent years, his position in this case is one that appears to be entirely consistent with the Constitution--and a position that is absolutely necessary, if we aim to reduce corruption.
Assuming racial profiling and partisan intimidation have not played a role in the investigation, there is no obvious civil liberties violation in this case. The FBI has gone through the proper channels and obtained an ordinary warrant allowing them to search the office of a citizen accused of a felony. The fact that this citizen happens to be a member of the House of Representatives, and that his office happens to be located in the Capitol Building, is completely irrelevant. His citizenship is no better than ours, and he--like all elected officials--should be subject to the same indignities faced by his constituents.
See also:
Comments
The articles mentioned do not give the seperation of powers. However, the real question is whther or not any of the material seized fall within the “speech and debate” clause. Another problem was that none of the agents would permit counsel to be present during the search itself. In the very least a representative of congress should have been present.
Obviously when they are breaking down my door, it is for homeland security, but when it is that bunch of criminals on capital hill, it is a violation of the constitutional rights of them