- The Washington Times - Saturday, June 10, 2006

The claim that FBI execution of a judicial search warrant in a Capitol Hill office seeking evidence of felony bribery is akin to the King of England having a troublesome parliamentarian imprisoned in the Tower of London without trial to “intimidate” others, or that it violates the Constitution’s “Speech or Debate Clause,” does not even pass the straight-face test.

The Supreme Court settled the meaning of the Speech or Debate Clause years ago, holding in various cases that the clause protects only “legislative acts” — like giving a speech on the House floor, remarks during hearings, official reports and votes. It provides no protection for defamatory statements made in speeches outside Congress, newsletters, or communications with government agencies on behalf of constituents. And it certainly doesn’t immunize communications such as those Louisiana Rep. William Jefferson is alleged to have made, promising (in return for $400,000 in bribes) to influence high-ranking government officials in Nigeria and Ghana to do business with a Kentucky corporation.

So the remaining constitutional issue is whether congressional leaders are correct when they allege that this investigation violates “the doctrine of separation of powers” upon which our Constitution is founded. And here their claim is even more absurd.

In explaining the new Constitution in Federalist number 47, James Madison wrote that “the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

It is useful to review the competing procedures at issue here to see which system is truly more consistent with separation-of-powers principles. Under Article II, Section 3, of the Constitution, the president is expressly directed to “take care that the laws be faithfully executed.” Congress makes laws, and it has been a felony for members of Congress to accept bribes for more than 150 years. The job of investigating and prosecuting violations of those laws is entrusted by the Constitution to the Executive branch; and, to facilitate this process, the Justice Department has both the FBI and 93 U.S. Attorneys — one for each judicial district — charged with prosecuting crimes.

Before the FBI can obtain a criminal search warrant, it must persuade a federal judge (appointed for life by the president, with the advice and consent of the Senate, to safeguard judicial independence) that there is “probable cause” to believe both that a crime has been committed and that evidence of that crime will be disclosed by the search. The application must also include a particular description of the place to be searched and the property to be seized. That was done in this case.

Before a defendant can be tried, a grand jury must bring an indictment. Every piece of evidence the prosecutor subsequently wishes to introduce in court is subject to challenge and will be excluded if the judge finds it was unreasonably seized, outside the scope of a lawful warrant, or if the seizure violated another provision of the Constitution (such as the Speech or Debate Clause) or federal law. Twelve jurors must then agree unanimously that every element in the offense is proven beyond reasonable doubt.

If the defendant believes the trial judge erred in admitting evidence, he may appeal his conviction to a court of appeals and ultimately to the Supreme Court. Conviction thus requires active involvement of all three branches of government and two separate juries composed of private citizens.

Now let’s consider the process if the Executive branch is barred from investigating or prosecuting legislators who commit felonies, leaving any punishment to the House or Senate. In upholding the power of the Executive to investigate and prosecute a senator who had taken bribes, the Supreme Court in the 1972 Brewster case observed there were “countervailing risks of abuse” inherent in leaving the disciplining of legislators entirely to their colleagues. Such an inquiry, the court noted, “is not surrounded with the panoply of protective shields that are present in a criminal case. An accused member is judged by no specifically articulated standards and is at the mercy of an almost unbridled discretion of the charging body that functions at once as accuser, prosecutor, judge, and jury from whose decision there is no established right of review.” And then there is the problem of legislators knowing and often having strong opinions about each other, which in a court of law would require recusal by a judge or dismissal of a juror.

Perhaps because of the shortcomings inherent in such a system, Congress has never had much stomach for disciplining its own members. Yet the Supreme Court has noted that bribery can “gravely undermine legislative integrity” and the principle that blatant criminal misconduct by public servants should be ignored is unacceptable. Anyone who believes in justice, the rule of law, legislative integrity, and genuine separation of powers, ought to be very grateful the FBI is doing its job.

Robert F. Turner holds both professional and academic doctorates from the University of Virginia School of Law, where in 1981 he co-founded the Center for National Security Law. He is the author of numerous books and articles about the separation of powers.

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