Hopes for a constitutional crisis are kept afloat today by way of a Washington Post article that appears under the headline, Raid Was Tipping Point For an Angry Congress. The raid in question is the FBI search of Louisiana Democrat William Jefferson's congressional office and the subsequent seizure of criminal evidence from it. In a related article, we are told that Jefferson is under investigation for at least eight bribery schemes.
Since it is unclear from the text of the constitution why this should be considered a crisis over balance of powers, Post reporters Peter Baker and Zachary A. Goldfarb look elsewhere to support their proposition.
The dispute speaks to the broader balance of power between executive and legislative branches in a time of war, he said, as most exemplified in the debate over the NSA surveillance.
"If the Congress is wrong to pry into the intelligence methods and information that the president is amassing for purposes of protecting us, the consequences of that are we will not be protected," Kmiec [Douglas W. Kmiec, Pepperdine University constitutional law specialist] said. "If the president is wrong, we will have distorted the protections of privacy and civil liberty for a generation or more, and maybe forever. Those stakes seem to me to be rather dramatic."
Congressional confusion and second thoughts over proper strategy for fighting the war on terror and the extent to which terrorists can be kept under surveillance have apparently given way. The battle to re-establish Congressional pre-eminence has given members from both parties a new focal point and a singleness of purpose. Unfortunately, a fabricated constitutional right to immunity from criminal investigation is not the best choice for their battleground.
Meanwhile, here in New Hampshire there are dueling opinions on the matter. Today's dead tree edition of the Nashua Telegraph carries a column by John Hall of Media General. I couldn't find it on the Telegraph website, but it turned up on a Google search at Scripps Howard News Service. In his column Mr. Hall notes that Republican outcry lends credibility to the claim that there is a constitutional issue here. He goes on to say,
As for the Constitution, the FBI raid was overly aggressive. The same result could probably have been achieved with a properly executed court order.
And he concludes,
Can criminal evidence be hidden away from investigators on taxpayer-supported, public property? That proposition won't stand either in the courts or the court of public opinion. The betting is that the Supreme Court will find a way to let the FBI in with a proper warrant next time.
At least Mr. Hall implies some opposition to the idea that Congress should be above the law. But I can't tell whether he thinks there was no warrant issued for the search, or if there was a warrant but it was in some way improper, or if a warrant is not considered a court order. But just in case Mr. Hall hasn't heard, there was a warrant and it was signed by a judge. That by itself would seem to seem to say this is not a case of Executive Branch overreach, since the Judicial Branch got its two cents in as well.
I find it mildy puzzling that the Telegraph would print that particular column. One would expect that there are journalists employed at the Telegraph, the kind that discover and report news. Sometimes facts are considered news. It's odd that the Telegraph would consider unimportant the fact that a warrant was issued, or that they could miss that fact altogether. In either case they mislead their readers on that point by printing Hall's column.
The Manchester Union Leader presents an opposing viewpoint. On today's editorial page they weigh in this way.
After the FBI searched — with court order — the Capitol Hill office of Rep. William Jefferson, D-La., House members of both parties went bonkers. House Republican leaders asserted that the search was unconstitutional and a violation of the separation of powers doctrine. They need to re-read their Constitution. If they don’t have a copy, there’s a nice hand-written one over at the National Archives.
Nothing in that document forbids law enforcement from investigating a member of Congress for a crime. Article 1, Section 6 states that members of the House and Senate “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.”
Credit goes to the Union Leader. Not only do they point out that the search was carried out under a court order, they helpfully provide the pertinent text of the U.S. Constitution. Perhaps, the reason Post editors haven't included the actual text of the Constitution in any of their news articles on this topic is that it doesn't support the side of the story that has their sympathy. Instead, they consult superior legal minds who interpret and explain why Congressmen should be allowed exemption from laws the rest of us have to live by. I'm thankful that here in New Hampshire, at least at the Union Leader, they don't feel that way.