- The Washington Times - Wednesday, June 10, 2009

When Democrats made their case during the 2006 elections about why they should control Congress, they offered up Republican lawmakers like Mark Foley and Rick Renzi as examples of the “culture of corruption” they wanted to rid from Washington.

Mr. Foley of Florida resigned after being accused of sending inappropriate e-mails to a 16-year-old congressional page. Mr. Renzi of Arizona faced questions about land deals and accusations that he helped a defense contractor that employed his father.

Convinced that many members of Congress had lost their moral compass, voters sided with Democrats and thrust Republicans from power.

But when the limelight faded, the controversies took an unexpected twist: Democrats, now in control, sought to block or limit prosecutors from gathering certain evidence of corruption against members of Congress on constitutional grounds, complicating the criminal cases against the two Republicans.

House Speaker Nancy Pelosi of California and the Democratic leadership joined with top Republicans to continue a years-long tradition authorizing the House general counsel’s office to intervene in outside investigations of its members.

Through court filings, the bipartisan coalition sought the exclusion of evidence it said was obtained in violation of Article 1, Section 6, Clause 1 of the U.S. Constitution. The clause protects the legislative branch from meddling by the other two branches, declaring that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.”

Many see use of the clause as an effort by Congress to protect its own.

“I think the House as well as the Senate tries to overexpand that right,” said Washington lawyer Robert S. Bennett, a prominent white-collar defense lawyer who has served as special counsel to the Senate Select Committee on Ethics in several major cases.

Mr. Bennett said the clause should be used “narrowly” and not “to cover things up.”

“Congress is largely unaccountable. … Ethics enforcement in Congress is largely a joke,” he said.

Mrs. Pelosi’s office makes no apologies. There is “no incompatibility between adherence to the constitutional protections of the Speech or Debate Clause and the effective investigation and prosecution of members of Congress accused of wrongdoing,” her office told The Washington Times.

“On a bipartisan basis, we are negotiating with the Department of Justice to develop protocols that will meet the needs of law enforcement while respecting the separation of powers and the independence of the legislative branch,” Pelosi spokesman Nadeam Elshami said.

In a letter last year, House General Counsel Irving B. Nathan said the positions taken by his office “are not designed and have not had the effect of shielding any member from the criminal justice system,” noting that 35 members of Congress have been prosecuted in the past 30 years.

With at least a half dozen other members of Congress reported to be under investigation in recent years, House leaders and their attorneys haven’t talked about where else they may have intervened. Attorneys for the lawmakers refused to answer questions about congressional intervention, citing the secrecy requirements of grand jury proceedings.

The Speech or Debate clause was designed to protect members of Congress from intimidation by the executive or judiciary branches. It immunizes members from lawsuits and criminal charges for legislative actions and protects lawmakers and their staffs from having to testify about or turn over documents related to their legislative activity.

Prosecutors, defense lawyers and the courts have argued for years over how far the protections extend and whether a violation taints a whole pool of evidence.

The heightened concern over whether federal investigators have overstepped their authority began after the FBI searched Rep. William Jefferson’s Capitol Hill office in a bribery investigation in May 2006. Mr. Jefferson’s trial on charges that he solicited bribes began Tuesday in a federal courtroom in suburban Washington.

In 2006, House Speaker Dennis J. Hastert, Illinois Republican, and Mrs. Pelosi, then the minority leader, asked House attorneys to seek to exclude evidence FBI agents had gathered during what many lawmakers called an unprecedented search.

Mr. Jefferson was indicted in June 2007 for soliciting bribes from people who wanted help in advancing their businesses in Africa. The indictment said FBI agents found $90,000 in cash in a freezer in the Louisiana Democrat’s Washington, D.C., home, purportedly to use to bribe a Nigerian government official.

House attorneys, acting on behalf of the bipartisan leadership, filed a friend-of-the-court brief in the Jefferson case, arguing that he did not have an opportunity to screen and remove protected legislative records before the FBI raid. A federal appeals court later ruled that the search violated his constitutional rights and ordered privileged material returned.

In the Renzi case, the House attorneys representing the bipartisan leadership asked the court to throw out wiretap evidence collected by FBI agents, saying its use violated the clause. A ruling in the case is expected soon. Mr. Renzi, who survived the 2006 elections but did not seek re-election in 2008, was indicted in February 2008 on charges of extorting businesses who wanted his help with federal land swaps.

“The Speech or Debate Clause was never intended to provide members of Congress with blanket protection from prosecution for criminal acts,” Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), wrote in a brief in the Renzi case. She said the court would be “immunizing members of Congress from criminal investigation” if it said government agents may not incidentally overhear legislative material while monitoring telephone conversations.

In the Foley case, Florida investigators were denied unfettered access to his government computers when House attorneys argued that such a search would violate the clause. In September, Florida’s top law enforcement official said investigators were “denied access to critical data” and the case was dropped.

Mr. Hastert asked authorities in October 2006 to investigate whether Mr. Foley violated the law by sending inappropriate computer messages to the page. Two years later, the Florida Department of Law Enforcement (FDLE) said House attorneys argued that the clause prevented police access to his computers without Mr. Foley’s permission because the hard-drives contained data dealing with legislative activity.

In December 2007, FDLE Commissioner Gerald Bailey asked Mrs. Pelosi for her help in gaining access to Mr. Foley’s computers. According to the FDLE’s now-public investigative file, she referred the request to House attorneys who offered to search the computers on the condition that Mr. Foley’s attorneys could review and remove any documents they determined were protected by the clause.

Mr. Bailey said he was “sure anyone being investigated by FDLE would like the opportunity to review and filter evidence before providing it to us.” Florida investigators never got access, and the case was closed. Separately, the FBI also investigated Mr. Foley and didn’t bring charges against him.

Some watchdogs think the House has gone too far in using the clause to protect its members in congressional corruption cases.

Paul Orfanedes, director of litigation at Washington-based Judicial Watch, said the clause “wasn’t intended to make Congress a law enforcement free zone.”

“The House hurts its already much diminished credibility when it appears to be shielding members from criminal investigations, like it did in case of [Mr.] Jefferson,” Mr. Orfanedes said. “The public will have even less confidence in Congress than it already has if the House can’t devise a better way to let law enforcement do its job when it comes to investigating political corruption.”

Ms. Sloan, in a January 2008 letter to Mrs. Pelosi and House Minority Leader John A. Boehner, Ohio Republican, said the congressional leadership “is improperly shielding members of Congress from criminal investigation through an expansive interpretation of the Speech or Debate Clause.

“Members of Congress are not above the law, but the House’s aggressive use of the Speech or Debate Clause to impede law enforcement authorities from investigating members’ potentially illegal activities is unseemly,” she said.

Mr. Boehner’s office declined to comment. A spokesman for Mr. Hastert said he was not available for comment.

In a 2008 letter to Ms. Sloan, Mr. Nathan, the House general counsel, said his office’s efforts have been to uphold the clause, which he called “a vital pillar of Congress’ independence.” He said his office does not represent members or staffers who are investigative targets but rather the House as an institution.

But Ms. Sloan told Mrs. Pelosi and Mr. Boehner in her letter that members of Congress, “like all other citizens, can hire attorneys to ensure that their constitutional rights are protected; this is not, however, the job of the House general counsel, hired at taxpayer expense.”

The Senate has not been as aggressive in intervening in corruption cases of its members. Unlike the House, where the leaders decide, the Senate has to vote on authorizing its attorneys to file a friend-of-the-court brief.

In the House, four Democrats and four Republicans are or have recently been under federal investigation, according to CREW. They are Democrats John P. Murtha of Pennsylvania, Peter J. Visclosky of Indiana, Jesse L. Jackson Jr. of Illinois and Allan B. Mollohan of West Virginia, and Republicans Jerry Lewis and Gary G. Miller, both of California, Don Young of Alaska, and Tim Murphy of Pennsylvania.

Three former Republican House members - John Doolittle of California, Tom Feeney of Florida and Curt Weldon of Pennsylvania - also are under federal investigation.

The House is thought to have intervened in some of the pending investigations, but those activities are currently not public, shielded by grand jury secrecy.

In a statement late last month, Ms. Sloan said Republicans and Democrats “may not see eye to eye on much, but both parties agree members of Congress should be above the criminal laws that apply to the rest of us.”

Kristi Jourdan contributed to this report.

Sign up for Daily Newsletters

Manage Newsletters

Copyright © 2020 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.


Click to Read More and View Comments

Click to Hide