By Steve Chapman: Syndicated columnist
The Bush administration has a habit of misreading the Constitution, pushing its powers as far as possible and expecting Congress to meekly go along. But now the House of Representatives has decided to fight back — not by asserting its rightful prerogatives, but by misreading the Constitution, pushing its powers as far as possible and expecting the president to meekly go along.
Its sudden attack of institutional pride comes in an exceptionally bad situation. The Justice Department is investigating Rep. William Jefferson, D-La., for allegedly accepting bribes. The FBI, which says it has a videotape of him taking $100,000 in cash, found $90,000 stashed in his freezer when it raided his home.
But the agency also did something unusual. It set foot in his Washington office in search of additional evidence, and left with calendars, date books and the hard drive of his computer.
The decision prompted a rare show of bipartisan unity. House Speaker Dennis Hastert and Democratic Leader Nancy Pelosi reacted like cats whose tails got caught in a door. They issued a joint statement insisting the Justice Department return the material it took and revise its “protocols and procedures” for those cases where members of Congress may be guilty of crimes.
House Republican Leader John Boehner of Ohio demanded to know if “the people at the Justice Department have looked at the Constitution.”
Democrats, not to be outdone, had their second-in-command, Rep. Steny Hoyer of Maryland, express shock at this invasion of privacy: “We all have in our offices information, letters, correspondences, speeches, etc., that we have written,” and some of it “is confidential information, just as the White House has confidential information.”
President Bush, who has often upheld dubious assertions of executive power, was less eager to defend this perfectly legitimate one. He tried to appease Hastert and Co. by sealing the materials for 45 days, at the expense of delaying justice.
Apparently it comes as news to federal lawmakers that they are subject to the same laws as everyone else. Corporate executives or labor organizers suspected of taking bribes would not expect their workplaces to be off-limits to police. Yet they, too, may have in their files “confidential information” they would prefer to keep private.
House members think they’re so special that their secrets should trump any need to stamp out corruption. Fortunately, there is nothing in the Constitution to support that inflated view of their prerogatives.
One passage says members “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.” Its chief purpose, though, is to prevent members from being punished for doing their jobs — not to create a special zone where they can hide evidence of felonies.
Northwestern University law professor Ronald Allen, in line with the consensus among legal experts, says the idea that the raid violated the Constitution is “absurd.” When I called the speaker’s office in search of evidence to the contrary, my call went unreturned.
Connoisseurs of Washington etiquette complain that this is the first time a Capitol Hill House office has been violated in this way. But this history is due more to the executive branch’s fear of retaliation than to any constitutional barrier.
It’s not as though the executive branch claims carte blanche to ransack congressional offices. To gain admittance to Rep. Jefferson’s sanctum, the FBI had to get a search warrant, which judges may not grant without information showing “probable cause.” Nor can it seize anything and everything it finds — only items specified in the warrant and other obvious evidence it may come across.
These, as it happens, are the same protections that apply to ordinary people when their conduct raises suspicion. They are also the same protections available to presidents. Richard Nixon thought his tapes should be kept away from investigators, and Bill Clinton was no doubt distressed when he had to turn over records concerning Monica Lewinsky’s nocturnal visits to the West Wing.
Courts in those cases had the same response as in this one: Tough luck. The general rule says if you value your privacy, you shouldn’t run afoul of the law. If that’s good enough for the rest of us, it should be good enough for Congress.
Steve Chapman writes for Creators Syndicate. Contact him at: