Dispatches from the Creation Wars

If You Have Nothing to Hide, Why Worry?

Posted by Ed Brayton on May 25, 2006
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Like many others around the blogosphere, I’m finding it quite amusing that the Congressional leadership has finally found an exercise of executive law enforcement authority frightening enough to get upset about – unfortunately, it took a raid on a Congressman’s office to do it. The FBI raid on Rep. William Jefferson’s office last weekend has Congress absolutely apoplectic, despite the fact that A) they had a warrant and B) Jefferson had been videotaped taking bribes from an undercover officer. If that isn’t probable cause, I don’t know what is.

But the Congressional leadership is freaking out. Hastert and Pelosi issued a statement claiming that the raid was unconstitutional, while former House Speaker Newt Gingrich said it was the worst violation of separation of powers he’d ever seen. Such fevered hyperbole! Are they really suggesting that it’s unconstitutional to serve a legal warrant and perform a search on a Congressman after probable cause is established? Well yes, they are.

But wait…haven’t we been hearing from Hastert and others all along in excusing away the administration’s illegal surveillance activities that if you haven’t done anything wrong, you have no reason to be worried? Why yes, we have, and therein lies the key to understanding this inflated rhetoric – they do have a reason to be worried. One Congressman, “Duke” Cunningham, is already in jail for taking bribes. Jefferson soon will be. And with the Abramoff investigation still going on, at least a dozen members of Congress are currently under investigation for similar things. More raids will be coming.

The hypocrisy of the whole thing is this: Hastert and his buddies seem to think that warrantless and limitless searches involving every phone call everyone in the nation has made are just fine, but targeted searches with a warrant after a clear demonstration of probable cause are not. I’ll take pure hypocrisy for $1000, Alex. And as a commenter at Volokh suggested, the new slogan for Congress should be: “Warrants: not good enough for us, too good for you.”

And just to add to all the hypocrisy, how about the Congressional Black Caucus? They’re mad at Pelosi for demanding that Jefferson step down from his position on the House ways and means committee. Funny, I didn’t hear them defending Tom DeLay when they demanded that he step down from his committee assignments and leadership position. And you’ve gotta love their logic:

Pelosi’s curt letter to Jefferson, and the public nature of it, has riled a sizable bloc of her House troops — the 42-member Congressional Black Caucus. At private meetings with and without Pelosi on Wednesday, members of the group grew emotional and complained that Jefferson was being singled out.

Well yes, Jefferson is being singled out. Why? Because he was videotaped taking a $100,000 bribe from an undercover officer. People who commit crimes get “singled out” from those who don’t. This is only surprising to the irretrievably stupid.

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Comments

  1. #1 Ebonmuse
    May 25, 2006

    I can’t speak for Pelosi and the CBC (other than to say they should be ashamed of themselves), but the reason Hastert was so angry about this may well be that he himself is under investigation for alleged involvement in the Abramoff scandal.

  2. #2 sdanielmorgan
    May 25, 2006

    Is anyone stupid enough to think that Congress, year after year, refuses to have 100% transparency (esp. in campaign financing and Congressional tax returns) for the reasons that they say that they won’t?

    It’s like everyone deep down knows that a large portion of these people take bribes and trade favors, but we all just think, “Politicians will be politicians,” as if we’re resigned to political corruption.

    Someone needs to get mad as hell. And not take it anymore. A number of someones.

  3. #3 Ginger Yellow
    May 25, 2006

    “If You Have Nothing to Hide, Why Worry?”

    Those were my exact thoughts when I saw the Hastert/Pelosi statement. The hypocrisy is sickening. What’s even more sickening is the way the Democrats are so desperate to keep their perks and privileges they can’t even bring themselves to take a populist anti-corruption stance.

  4. #4 Left_Wing_Fox
    May 25, 2006

    From what I’ve seen there _is_ the hint of a constitutional issue, largely to keep an unchecked executive from using police-state powers to harrass members of the legislative, short of treason, sedition, or felony. Given that this is a felony investigation that has followed due process, there should be no complaints here.

    It is interesting the fault lines of this: Democratic members of congress are arguing in Jefferson’s favor, but the liberal netroots have been pretty unanimous in favour of throwing the book at him.

    I wonder what will happen on appeal here if this makes it to the supreme court.

  5. #5 Mark Paris
    May 25, 2006

    Same as it ever was. Congress won’t give older citizens decent medical coverage but they have wonderful coverage. Spend their Social Security, but give themselves generous pay and retirement benefits. Let the administration run wild over citizens’ rights but whine when one of their own feels the pinch.

    There is a simple solution to the corruption in Congress: Make it illegal to take campaign contributions from anyone outside your own district, and illegal to take campaign contributions from anyone but an individual, and anything more than some modest amount. Make it illegal for a member of Congress to accept from any organization, from the VFW to Mobile Oil, anything of any value, from lunch at Taco Bell to a trip to a Florida resort – anything.

    I know, I know, First Amendment rights allow people to express their political views through ads. Maybe you can’t do anything about that, but at least it would keep members of Congress from taking actual cash and stuffing it into their pockets.

    Speaking of which, does anyone here remember when Ga. Sen. Herman Talmadge lost to a republican because of reports of exactly that: cash stuffed into his pockets? The republican victory there was touted as a sea change in Georgia politics. It was, but it had more to do with disgust at the blatant corruption than with a change in political outlook.

  6. #6 John Cercone
    May 25, 2006

    “There is a simple solution to the corruption in Congress: Make it illegal to take campaign contributions from anyone outside your own district, and illegal to take campaign contributions from anyone but an individual, and anything more than some modest amount. Make it illegal for a member of Congress to accept from any organization, from the VFW to Mobile Oil, anything of any value, from lunch at Taco Bell to a trip to a Florida resort – anything.”

    I am not convinced ANYTHING can be done as long as Congress can weild enough power to make corruption worth the risk.

    If Congress didn’t have so much power the incentive to cheat just wouldn’t be there.

  7. #7 Ed Brayton
    May 25, 2006

    There is no constitutional issue here at all. The speech and debate clause does not prevent law enforcement from serving a warrant. Jefferson had refused to turn over documents even after being ordered to by a subpeona. They then got a warrant to seize the documents. There is nothing the least bit illegal or unconstitutional about it.

  8. #8 Mike
    May 25, 2006

    Under the very obvious fact that this is “hypocracy gone wild” there seems to me a bigger issue and one that is more complicated. How to change it? It seem like anyone in power for any reason will somehow try to use that power to pad their pocketbook. And as much as I’m in favor of campaign reform (I personally think it should be paid by the state and nobody else can contribute) I don’t think that will really change the status quo as long as the gov’t is so opaque and has no real reason to become transparent.

    While I’ll never stop trying to advance change, it looks pretty bleak right now.

  9. #9 Mark Paris
    May 25, 2006

    My suggestion about curbing congressional corruption is rhetorical. Congress will never do anything like that, because the current situation provides two key benefits: 1) It strongly favors the incumbent, and 2) Incumbents can get rich in office.

  10. #10 kehrsam
    May 25, 2006

    The problem is Article I does create an immunity for Members of Congress, and the mere fact that the Justice Dept got a warrant does not change that fact. It is not the fact that Jefferson was subject to search, but that his office was. While this may seem a petty distinction, it is actually an important SparTation of Powers issue. This is the first time since John Adams’ administration that a Member has been subject to search and possible arrest while on “Official Business.”

    Does Jefferson have complete immunity on transactions that occur at his office? No, the Congress can authorize an investigation, and the results can then be turned over to the Justice Dept if necessary. See the Trafficant case.

    Small beer indeed when US citizens can be held in indefinite detention when the administration trots out the GWOT; still, I think we should be holding on to every vestige of Constitutional freedom we have left. Keep in mind the first thing fascist states do is restrict the liberties of opposition parliamentarians.

    For the record, Judges enjoy the same immunity in their chambers, even though the temptation for graft is also high. The security of each branch in its function has served the republic well, and we would be ill-advised to throw it out because of a few small fry. Trust me, the real quid pro quos occur at too high a level to ever be considered criminal; the fact that Cunningham and Jefferson were taking it as cash indicates they really weren’t players to begin with.

    To address the other meme on this thread, Congressional staffers are not going to convince their boss to change her mind on a piece of legislation because a lobbyist bought them lunch. The current ethics reform movement is way off base. Stop earmarks if you want to take a bite out of corruption. But free food and an occasional round of golf are about the only reason to take an underpaid and overworked staff job.

  11. #11 Ed Brayton
    May 25, 2006

    kehrsam wrote:

    The problem is Article I does create an immunity for Members of Congress, and the mere fact that the Justice Dept got a warrant does not change that fact. It is not the fact that Jefferson was subject to search, but that his office was. While this may seem a petty distinction, it is actually an important SparTation of Powers issue. This is the first time since John Adams’ administration that a Member has been subject to search and possible arrest while on “Official Business.”

    This simply isn’t true. The immunity clause does not give total immunity, it does not mean that no congressman can be charged with a crime. That would be ridiculous. Here’s what it actually says:

    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.

    The text clearly says that they can be arrested for a felony, which is what Jefferson is charged with. It only says that they can’t be arrested during a session (he wasn’t) or for something he says in Congress (he wasn’t). And it says nothing at all about being immune to legal searches with a judge’s warrant. There is no constitutional issue here.

  12. #12 kehrsam
    May 26, 2006

    I appreciate your position, Mr. Brayton, but I did not claim there was an absolute immunity for members in their oficial business. I merely suggested 1) There is an immunity clause, part of the broader Separation of Powers doctrine; and 2) That this is the first time in over 200 years that an administration has chosen to pierce that veil. It is another in a long series of data points of the current administration reaching for aggrandized power vis a vis the other branches.

    Seeing as the House has an Ethics Committee and the Speaker also has the authority under House Rules to launch an internal investigation, the whole intrusion seems like a bad idea. All DOJ had to do was request the Ethics Comm to subpoena the docs it wanted. Even with the partisan frenzy on Capitol Hill these days, no one is going to cover for this kind of slimeball.