- The Washington Times - Saturday, May 27, 2006

Hear ye. Hear Ye. Congress has awakened from its constitutional slumber.

After years of allowing this president to walk all over them — and in the midst of a still-unfolding constitutional crisis in which the U.S. Congress repeatedly and meekly has acceded to a president claiming unilateral power to ignore laws passed by that institution — House and Senate leaders from both political parties have gathered up their courage, puffed up their chests, and bellowed that the administration of George W. Bush has gone too far.

What actions have thus roused this once-mighty institution to such indignation? The execution of a search warrant on the office of a Louisiana congressman already apparently caught on tape accepting a $100,000 bribe, and whose freezer in his Washington, D.C., home has already yielded $90,000 in ? literally — cold cash.

Let’s get this straight. The highest leaders of the Congress are upset, and gearing for a fight, not because they have been rendered essentially irrelevant by a power-hungry president, but because the Justice Department executed a search warrant over the weekend on the Capitol Hill office of New Orleans Rep. William Jefferson.

While perhaps this action by the congressional leadership is simply due to sincere, if misguided, late-night strategy session designed to find a way to lift their awful poll numbers — hovering in the 20s and 30s (22 percent, according to a recent NBC/Wall Street Journal poll) — the fact is, they have chosen their battle unwisely.

One can understand, even forgive, Mr. Jefferson’s lawyer — the highly-regarded Robert P. Trout — from the hyperbole evident in his just-filed court papers objecting to the raid on his client’s office. Congressional leaders’ statements and actions in rallying to the same cause, and in escalating this incident to a confrontation with the other two branches of government, make considerably less sense.

Granted, the specifics of the incident are unusual if not unique. For example, while there have been over the years numerous prosecutions of sitting members of Congress for criminal acts, including bribery, this may be the first time a federal search warrant actually has been executed on the official congressional office of a sitting member of either house. It is also true both Mr. Jefferson and Congress possess legitimate interests in the ultimate outcome of the legal proceedings.

Front and central to this debate are two provisions in the U.S. Constitution. First, of course, is the Fourth Amendment — part of the Bill of Rights — which requires, among other things, that the government normally must secure a judicially issued search warrant based on probable cause that a crime has been committed, before conducting a search and seizing evidence.

The amendment also requires that government agents specifically describe in the search warrant what they are looking for. No one in America — congressman or homeless person — has a right to immunity from having their person or office searched; they simply have a right to demand that the government follow the law and the Constitution in so doing. In the case of Mr. Jefferson, if the actions of the government agents — or of the court that approved the search warrant — are found wanting, any evidence seized should properly be suppressed.

It is the other constitutional provision — the “speech and debate” clause found in Article I of that magnificent document — that is causing the current uproar. The language of this provision properly protects sitting members of Congress from prosecution for their official, legislative actions. However, as with the language of the Fourth Amendment, it has never and never should be held to provide immunity from either search or prosecution for criminal acts such as bribery.

The speech-and-debate clause has been tested many times over the years, beginning in the late 19th century and including a case in which I was involved in the late 1980s when I was U.S. attorney in Atlanta, Ga., in which my office [successfully] prosecuted a sitting Republican member of Congress for perjury and obstruction of justice.

Time and again, federal courts have appropriately held the speech-and-debate clause does not shield federal legislators from having to answer for criminal acts. Instead, the courts have determined the language protects only that relatively narrow category of actions directly related to and furthering their official and defined responsibilities as legislators. Insofar as bribery is not included in those protected actions, the speech-and-debate clause does not — and should not in this case — be allowed to defeat an otherwise lawfully secured and executed search warrant.

That leaders of Congress obviously believe otherwise reflects not only questionable political acumen, but more importantly, deficient constitutional understanding. From a practical perspective, blasting the FBI for doing its job — and incidentally, for stepping in to punish congressional misconduct where the House ethics mechanism has shown itself woefully somnambulant — will only chill future prosecutions and give aid and comfort to those the American people rightfully seek to punish.

Already, the fact that Congress has lept to Mr. Jefferson’s defense has provided breathingroom for the embattled congressman. The picture is madeeven murkier by the statement President Bush issued later in the week that appears to signal weakness in the administration’s position. Historically and legally, the Department of Justice is on solid ground, but if they fail to hold that ground, they’ll have only themselves to blame when this and future cases unravel.

Bob Barr is a former Republican member of the U.S. House of Representatives from Georgia and a former U.S. Attorney there.

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