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Why All the Fuss?


It’s amusing, frankly, that the Republicans have suddenly awoken to the dangers of a Chief Executive who has decided that he is a law unto himself.  Suddenly, all that rubber stamping for the Imperial Presidency has lost some luster — at least for the Republican leadership if not the whole of the the GOP rank and file.  From Dana Milbank at the WaPo:

The radicalization of Denny Hastert has been a marvel to behold after years in which Bush has urged him to stay on the job because of his fierce loyalty to the White House. First, Hastert groused about the Dubai port deal. Then, he criticized the administration’s ouster of CIA chief Porter Goss. Now, his fury about the office search has come like a nor’easter merging with the tropical depression congressional Republicans already find themselves in — and it’s getting stormy on the Hill.

House Republicans huddled over Twinkies, chips and soft drinks for nearly two hours last evening about the constitutional impasse, even after Bush tried to defuse the conflict by sealing the seized files for 45 days. The House Judiciary Committee chairman, James Sensenbrenner (R-Wis.), announced that he would hold a hearing titled "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"

"Every two years, I stand in the well of the House and raise my right hand and swear to uphold and defend the Constitution of the United States," a high-minded John Boehner (R-Ohio), the House majority leader, told reporters.

"We need to protect the division of powers in the Constitution of the United States," the speaker himself said — over and over again.

Suddenly, all the issues that seemed so pressing a few days earlier — war spending, immigration, gas prices — were on the back burner. Emerging from the meeting of House Republicans, GOP spokesman Sean Spicer said members were willing to come out and talk about oil drilling; not a single journalist accepted the offer.

The newfound passion for congressional prerogatives has amused Democrats, who have complained for years about what they say is the administration’s contempt for congressional authority. The White House has stiffed requests from Congress on such key issues as probes of Hurricane Katrina to the eavesdropping programs at the National Security Agency.

Whether it is fear of their own offices being searched next — or this was a wake-up call as to the repurcussions of allowing the boy king to always get his way on our constitutional system of government, I have no idea. But in standing up to the President and the Executive Branch on this, they are correct.

That’s right — don’t choke on your coffee.  I said that they were correct — even though they are standing up for the rights of a Congressman who allegedly accepted a bribe (caught on tape) and then stuffed the bulk of the cash in his freezer.  And you know why this is?  Because the law applies to everyone.  Period.

Oh, and a note to Bushie:  pissing off Sensenbrenner by going back on your word and making him look like a patsy on the immigration issue?  Not the smartest thing you’ve ever done.  He’s got a big ego, and a very big power chair in the House — and you can ask Bill Clinton about this one — he’s more than eager to use his seat to make your life as miserable as he possibly can.

The separation of powers question comes in because the FBI entered Jefferson’s office — in a Congressional office building —  at a time when Congress was in session to conduct the investigation.

This triggers a confrontation under the "speech and debate" clause in the Constitution.  The question on the validity of the warrant will be, I think, whether or not there was some triggering piece of information that Rep. Jefferson was attempting to use his office as a means to hide illicit information and/or to shield himself and whether that was the basis for obtaining the warrant.  If Rep. Jefferson was using his constitutional protections as a means to avoid prosecution, then the warrant may stand up — because you never, ever want to reward someone for using a loophole to subvert the investigative process — Congressman or not.

Absent some extraordinary showing of that sort, an executive branch investigative agency would not have the authority to do this sort of search on Legislative branch property.  It has never, in the history of the Congress, been done before.  It’s really unprecedented — that’s why I’m wondering if there was an extraordinary show of cause in the warrant as to why this needed to be done, because I can’t think of any other valid reason for a federal judge to grant them access under the "speech and debate" protections that usually are in place.

And I do wonder why it took the FBI months and months after allegedly finding all this cold, hard cash in Rep. Jefferson’s freezer before they decided to search his office — at a time when GOP corruption stories were all over the news. 

I mean, honestly, the timing is a little weird and I wonder what they needed from the Congressional office that they didn’t already have with their videotape of Jefferson allegedly accepting a bribe, the videotape of him allegedly removing said money from the back of the briber’s car and taking it to his own and then the alleged finding of the cash in his freezer.  Why raid his Congressional office when you have a case that seems pretty darn solid?  There are investigative reasons to do so — but it was a truly unprecedented move, and one that ought to have required very extraordinary circumstances before it was executed.

I suppose my confusion arises from the fact that Duke Cunningham, former representative from California who has now plead guilty to bribery charges, wrote out a "bribe menu" on his Congressional office stationary…and they didn’t search his office.  And Tom DeLay has been running a virtual KStreet ATM machine for the GOP out of his office…and it hasn’t been raided.  Or the fact that Bob Ney’s office has remained intact.  Or…well, you get the picture.

And because this is the Bush Administration, you can color me slightly suspicious about the timing and the motivation on this — even as I sit here thinking that Rep. Jefferson ought to consider resigning.  Now.

Either way, though, the Speaker and the Minority leader, as well as the Senate leadership are absolutely correct in standing firm on their "speech and debate" rights to no searches.  This was put into place to prevent the sorts of abuses of the King going into the houses and/or offices of his political enemies to gin up a case against them (sound like any Administration we know?) — and they are absolutely correct to fight any weakening of this protection tooth and nail.

I’d do the same thing.

This area of Con Law wasn’t my specialty — so anyone who has worked on the Hill with Judiciary or otherwise who has done work on this area please feel free to chime in — but I think I’m remembering my American history correctly on just why this was specifically set up as a protection for Legislators. 

And given the erosion of the Constitution under the Bush Presidency, I have to say that it’s about damn time they took a firm stand on something — anything — without making their jobs wholly obsolete.

Digby has some more thoughts on this which, as always, are well worth the read.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com