Legal But Unsettling:


The New York Times today confirmed that it was legal and constitutional for the Justice Department to raid the congressional offices of Rep. William Jefferson (D-LA), but that it “unsettled widely shared understandings of constitutional relationships and freedoms that have existed for generations.”

In the search case, there is broad academic consensus that the constitutional protection for Congressional speech and debate does not extend to evidence of criminal conduct, even if it is in a Congressional office.

That means the Justice Department was probably entitled to seek — and a federal judge probably correct in authorizing — a warrant to search the offices of Representative William J. Jefferson, Democrat of Louisiana, notwithstanding objections by leaders of Congress.

But having the legal power to conduct a search of another branch of government does not mean it is a wise or prudent thing to do. No other administration has ever done it. In ordering a 45-day cooling-off period, during which the solicitor general will hold the seized materials, President Bush seemed to allow time for reflection on the difference between what the executive branch may do and what it should do.

It is certainly true that this raid is not something that should be a regular occurance and I have always, in supporting the raid, thought that this was a particularly unique circumstance. Jefferson was clearly uncooperative in the investigation and was also determined to be untrustworthy, as demonstrated by the allegations that he attempted to remove documents in a blue bag during the search of his New Orleans home. Raids on congressional offices certainly should not become a regular occurance in Washington, but neither should members like Jefferson become a regular occurance.

The executive and Congress need to sit down and hash this out and come up with a workable proceedure so that the confusion and bitter attacks that came after the raid does not have to happen again. Then the Congress needs to get back to enforcing its own ethics rules and drop the current motto of “what happens in Congress, stays in Congress.” In the end, Congress is the one to blame because they did not police their own membership — they failed in their constitutional responsibility and left the FBI and Justice to do what they refused to.

And finally to put this in perspective here is an article that I read over at John Cole’s Balloon Juice:

Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures. … Under the Fourth Amendment, authorities are prohibited from entering a home and making an arrest without a warrant unless so-called “exigent” circumstances are present. Those include “hot pursuit” of a fleeing felon, imminent destruction of evidence and the risk of danger to the police or other persons inside or outside of a house, among others.

In this case, Justice Marvin Baxter wrote that the loss of evidence at issue was obtaining a measurement of the suspect’s blood-alcohol level. Baxter added that a contrary ruling would allow “the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol—or to claim to have done so—or when the suspect evades police capture until he or she is no longer intoxicated.”

Citizens don’t always get to have a warrant served on them and don’t always get the protection of the Fourth Amendment. Members should not get their own personal Cayman Islands Holding Corporations in an office building at Independence Ave and 1st Street.