Thursday, May 25, 2006

Congressional Immunity From Search Warrants. Are They Serious? Part I

Congressional leadership is crying fowl because the FBI searched the office of a member of Congress pursuant to a search warrant. A search warrant. You know, one of those things issued by a judge - someone who is neither a member of the executive branch, nor the legislative branch; one of those things that requires, as a prerequisite to its issuance, that the executive branch provide evidence by oath or affirmation to support the conclusion that there is evidence of a crime located at the place to be searched; one of those things that requires the judge to independantly review the evidence presented by the executive branch and conclude that probable cause exists to believe that there is particularly-described evidence of a crime located at the place to be searched, a conclusion that must be reached before the warrant is issued.

The main complaint of the congressional leadership is that the acts of the FBI violate the constitutional principle of "separation of powers." It doesn't take much analysis to demonstrate why this claim is nothing more than grand standing without any basis in fact or law.

Let's start with the fact that the constitution creates three branches of government with each given separate and independant functions. This was to provide the crucial "checks and balances" that is part of our system of government. One of the primary functions delegated to the executive branch (of which the FBI and US Attorneys are a part) was the enforcement of laws. That includes the investigation and prosecution of criminal offenders. (In this case it is an allegation of bribery involving a member of Congress). Congress does not investigate and then prosecute violations of criminal laws; they pass those laws. So, what we have is the executive branch actually performing its obligation as it is delegated by the Constitution, the judicial branch performing its obligation as it is delegated to it by the Constitution by performing the warrant review and approval detailed in the Fourth Amendment to the Constitution, and the legislative branch be offended because the lawful functions of the other two branches are targeted towards one of Congress' members.

These members of Congress don't cite any provision of the Constitution that states Congress is exempt from the exercise of the powers delegated or inherent in the other two branches of government. That is because there are no provisions that would exempt members of Congress from the traditional and proper functions of the executive and judicial branches. Ironically, therefore, what these members of Congress are complaining about as a violation of separation of powers is actually the truly intended function of "separation of powers" in action. The complaints of these members of Congress really amount to an unsubstantiated argument that the Constitution exempts members of Congress from the actions of the executive and judicial branches if their actions involve issuance and execution of a search warrant on a congressional member's office.

Let's just call it like it is: It is not about violating the constitution. It is a beef about whether one branch of government (here the executive branch) exercised appropriate respect and restraint in relation to carrying out its responsibilities vis-a-vis another branch of government (here the legislative branch). I'm sure most of these members of Congress are simply concerned about the fact that there are politically sensitive items that are located in their various congressional offices. I'm sure that it might even be horrifying for them to think that any outside person (FBI or otherwise) could end up possessing politically sensitive materials. That concern I can completely respect, especially for those members of Congress for whom members of the executive branch have the proverbial "ax to grind."

I think we should let another facet of the "separation of powers" concept play out. The separate branches need to respect one another and use their best efforts to reach agreements that allow each branch to carry out its responsibility without interfering with or interference from the other branch. It is about sitting down at the table, being honest about the concerns, and pounding out an understanding that meets the needs of both branches.

President Bush (love him or hate him) made a smart political move by sealing the documents seized by the FBI and giving the branches an opportunity to agree on some procedures for handling this and future situations. I've read enough comments from some of the grandstanding members of Congress to think that they agree that sitting down at the table is the best political direction to follow.

I can't help but wonder what negative consequences will flow out of a situation where Congress continues to fight with the White House over this. I have not read anything to suggest that the warrant was not properly supported, reviewed, and issued. I have not read that any politically sensative materials were seized. So, what this Congressional defiance will end up looking like in the end is that members of Congress think they should be exempt from being investigated for criminal conduct to the extent the incriminating evidence is at their congressional office. I don't buy it. I can only hope that the American public wouldn't either. My unsolicited advice to the offended members of Congress: Take the opportunity to reach a protocol agreement for the service of future warrants.


At July 30, 2006 1:17 AM, Blogger Em Keli said...

Diplomatic Immunity dates back as far as the Greek civilization. The immunity was not about the individual, but about the sanctity of the office for the people that are represented by that office. The purpose was to insure that the duties of the office could be carried out efficiently and effectively.

Congressional Immunity embraces this same wisdom, and was so imporant in the eyes of our founding fathers that Congressional Immunitiy is in Article One of the US Constitution.

While there ARE exceptions and SHOULD BE exceptions, this has not been violated in the history of our nation. Consequently we should not take any violation lightly.

Where we have in this case a voice and video recording of the actual transaction, coupled with the sequentially serial numbered bills being found in the freezer compartment of the refridgerator at Jeffersons home, does this case meet the exception? Are they suggesting that even with the above evidence, that their case is so weak, that they must find additional evidence?

If in fact this case is so weak, that would provide even more reason to deny an exception to search Congressional offices.


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