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FBI Search of a Congressman's Office v. Separation of Powers?

by Last Night in Little Rock

Over the weekend, the FBI searched the Congressional office of Rep. William Jefferson, and Republicans in the House are crying "foul" and "separation of powers." See House Leaders Question F.B.I. Search on NYTimes.com today.

As readers of this website and FourthAmendment.com have undoubtedly noticed, I tend to lean toward the citizen on Fourth Amendment claims. I also read the cases everyday, and I know the trends and what the courts can do and not do with particular facts. I am also a Fourth Amendment realist seeking to balance individual privacy and government need.

In Rep. Jefferson's case, however, "separation of powers" just won't cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that. Ask former Rep. Duke Cunningham.

Remember the Republican House members clamoring for Clinton's Impeachment saying that "we are a government of laws, not of men," and "no man is above the law"? Now they are singing a different tune because it is one of their own?

Let me use a Republican refrain to the NSA spying critics: "If you don't have anything to hide, what are you worried about?"

[cross-posted to www.fourthamendment.com]

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    Remember the Republican House members clamoring for Clinton's Impeachment saying that "we are a government of laws, not of men," and "no man is above the law"? Now they are singing a different tune because it is one of their own? This is either incredibly poor writing or a blatant attempt to smear the House Republicans. Representative Jefferson is a Democrat, and a rather liberal one at that. While it is true that he is a member of the House, you would never have referred to Tom Delay as "one of their own" had the House Democrats risen to his defense on a procedural issue (as strange as that would have been). With that said, the House Republicans are without a doubt wrong on this one (no surprise there, they are often wrong), as is Mr. Jefferson himself, who first put forth this claim (another point you convienently overlook or "forget" to mention). What we have here is a golden opportunity to drive home the fact that these people in Washington who create the laws are not above them, and that everyone of them is beholden to us, the "we" in "we the people". But that point will not be made if the liberal apologists keep crying "yeah but, they do it too" and the liberal pundits keep trying to push the issue off onto someone else as Last Night In Little Rock attempts to do here. For years now you have been telling us how corrupt the Administration is, and how wrong that is. For months you have been harping about Tom Delay's corruption as if it was the first sign of the end days. Yet now, faced with one of your own caught with his hand firmly in the cookie jar, you make the same kind of lame excuses and evasions that you have found so insulting from Bush, Cheney, and their supporters. This is why things just keep getting worse. If you want to be trusted to clean up this country come November, start by cleaning your own house now. The Republicans have proven they can't be trusted; now you have to prove you can be.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#2)
    by Fr33d0m on Tue May 23, 2006 at 05:26:15 PM EST
    I'm sure of two things JustPaul: 1. That if this were an attempt to smear Republicans, it would have been done happily and with granduer. 2. That the last sentance was an error.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#3)
    by Fr33d0m on Tue May 23, 2006 at 05:27:42 PM EST
    I wonder if the response to this were more for strategic purposes than because of any real 4th Amendment concerns.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#4)
    by squeaky on Tue May 23, 2006 at 05:53:38 PM EST
    jp
    Yet now, faced with one of your own caught with his hand firmly in the cookie jar, you make the same kind of lame excuses and evasions that you have found so insulting from Bush, Cheney, and their supporters.
    LNILR-
    In Rep. Jefferson's case, however, "separation of powers" just won't cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office.,,, His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that.
    JR are we reading from the same post here? LNILR in no way defends Jefferson. Is it his use of the word "alleged" is what is bothering you. Sheesh. The strange separation of powers stuff also seems from another planet to me. A dem caught on tape accepting a bribe and then caught with the cold cash doesn't seem like someone you would want to support, least of all if you were a republican politician. The only thing I can think of is that the Republicans may want to imply that the dems are part of the same machine that the Delay/Abramoff et al belong to. Their puffing up and getting behind Jefferson may be a calculated way to imply that the Republican scandal is in fact bipartisan.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#6)
    by aw on Tue May 23, 2006 at 07:37:23 PM EST
    Maybe Jefferson's in league with the Republicans.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#7)
    by squeaky on Tue May 23, 2006 at 07:46:02 PM EST
    aw-nah, his crime was simple bribery. The repubs may want him to appear as if he is in league with them. No way... oil and water.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#8)
    by aw on Tue May 23, 2006 at 07:51:55 PM EST
    Was meant as a joke, sort of.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#9)
    by jimcee on Tue May 23, 2006 at 08:06:25 PM EST
    Or perhaps Jefferson is just a plain ol' run-of-the-mill corrupt politician, sort of a mirror image of the 'Dukester'. Misconduct in Congress seems to be less of the exception and more of the rule and members of both parties seem to profit rather well once they set up shop in DC, often times living well above their gov't salaries would seem to allow.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#10)
    by squeaky on Tue May 23, 2006 at 08:26:45 PM EST
    aw-
    ..... a joke, sort of.
    well yes, he is a member of the house.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#11)
    by squeaky on Tue May 23, 2006 at 08:34:43 PM EST
    Misconduct in Congress seems to be less of the exception and more of the rule....
    Yes because the Republicans have the rule, How many democrats are legal trouble right now? How many republicans are in legal trouble right now? Evcuse me for falling over laughing

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#12)
    by james on Tue May 23, 2006 at 09:00:04 PM EST
    I don't think Hastert is trying to neutralize the 'corruption' image that his party currently has - if he were trying to do so the Dems could immediately drop support for the (allegedly) corrupt congressman and have a field day with ads where Hastert is defending such a person. It's more likely that they really see an issue here - the FBI is a political/civilian led agency that can and has been used for political purposes in the past. I would imagine Hastert want to prevent a future Democratic administration from doing the same to Republicans. Incidentally, I don't remember Ney's, Cunningham's, or Delay's offices being searched. Whether a search takes place or not would be decided by Justice/Gonzales because it is such a politically charged issue. Pelosi needs to cut all ties to him now and we need to start talking about the actual (okay alleged) purpose of the bribe - which was using the congressman as an intermediary in a Nigerian transaction/bribe. Nigeria only has ONE THING that is of ANY INTEREST to american companies - OIL. That's certainly true at 100k and bribes are commonplace (look at the LNG facility - all 4 oil groups that are signed on were found to have bribed officials on a far larger scale). So...turn it around and make it an oil company issue. Anyway, the Congressman's state is a major place for oil companies - I'd imagine it was for a large refinery or to complete a LNG facility that was having trouble (Liquid Natural Gas - it's exported).

    Corruption is a bipartisan vice. Partisans can attempt to score points when a member of the opposition is caught with his hand in the freezer. The truth is that neither party has a monopoly on honesty or dishonesty. Members of Congress are subject to temptations. Jefferson is a liberal and a Democrat. Cunningham wasn't.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#14)
    by squeaky on Tue May 23, 2006 at 09:47:25 PM EST
    Cunningham worked in a complex republican conspiracy, Jefferson acted on behalf of himself and his family. The comparison minimizes the complexity of the endemic web of republican scandals.
    neither party has a monopoly on honesty or dishonesty.
    I agree but that doesn't mutually exclude one party from having a monopoly on corruption at any given time. The republicans currently have that market cornered.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#15)
    by Kevin Hayden on Wed May 24, 2006 at 04:58:24 AM EST
    I don't support corrupt elected officials by any label. I expect attorney generals to rigidly follow the law. Are the leaks of what the FBI has discovered legal? Why is this case being tried in public instead of a courtroom? Is Gonzalez pursuing the leakers with the same evenhandedness that he intimidates journalists?

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#16)
    by roger on Wed May 24, 2006 at 05:16:41 AM EST
    This incident shows the total bankruptcy of both parties in Congress. Where were they when our privacy was invaded? Time to clean house and start over

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#17)
    by Jlvngstn on Wed May 24, 2006 at 05:34:55 AM EST
    So when ordinary American's rights under the constitution are being trampled on the congress votes overwhelmingly to pass the patriot act and plays stupid with the call trolling, but when congress feels violated the world is coming to an end? Jefferson by all appearances is a criminal and a disgrace to his constituency and his country. Perhaps he was a victim of entrapment with the FBI and had the 90k in his freezer because he does not trust banks. But I do not want to hear about how these poor schmucks have been violated and the constitution has been urinated on. Fire the lot of them.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#18)
    by Slado on Wed May 24, 2006 at 06:03:02 AM EST
    I think the Hastert thing is no matter how partisan these guys and gals are they still don't like the idea that a "congressman" can be investigated within their own building. Sort of like cops protecting obviously crooked cops etc... Even though they'd love to see a congressman go down in a sex scandal the idea that a "congressman" could actually have his office searched freaks them out and they defend the institution if not the man. It's lame and ridiculous but I think all Senators and Congressman suffer from an "i'm above the law" complex. Who was that guy that tried to use the same excuse when he was driving to a vote in the HOV lane and got caught?

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#19)
    by jimcee on Wed May 24, 2006 at 06:48:38 AM EST
    Sqeaky, I guess that corruption is OK by you as long as the accused has a D after his name. 'Power corrupts and absolute power corrupts absolutely' Both parties have played this game for ever but if you like being played for a sucker because of party affliations enjoy yourself.

    Never a comment you can't purposefully misapprehend, aye Squeak? As I clearly said, what is bothering me is LNILR's lame attempt to smear the Republican leadership by referring to Jefferson as "one of their own". There is no way in hell he would have called Tom DeLay one of their own had the House Democrats ever stood up for him on a procedural issue. He is simply trying to paint them with Jefferson's corruption, and that's BS. They don't need to be painted with anything but their own corruption. Had you bothered to read the comment entirely, you would have seen this, since it's all there and it's pretty clear I agree with the general gist of his post. I took issue with his partisan hackery, not the general comment. But, as usual, you can't be bothered with the truth, or with even attempting to understand the truth. You, like Last Night, simply want to find a way to turn this latest scandal against the Republicans, even though it's a Democrat was has been caught taking bribes (and, naturally, the idiot Republicans are more than willing to help you to do so). And still it goes on. The Democrats are sitting on their hands and keeping their mouths shut, something they certainly didn't do when it was Randy Cunningham in the crosshairs. And they were right to go after Cunningham. He is a crook. But so is Jefferson. So why the difference? What happened to all that grand talk about how important ethics and morals in government are? Why hasn't Nancy Pelosi stepped forward to demand this guy resign? As I said above (which you'd know if you'd read the comment): This is your big chance to show that you can do something right, that you can take the kind of responsibility that has been so lacking in the House Leadership lately, and that you can discipline your own. The House can vote to expel members for corruption. If the Democrats stood up to do so, it would happen today. Instead, you're just going to make excuses for this guy and hope he somehow survives long enough to make sure his successor has no real opponent in November, which raises the simple question of why anyone should believe that the Democrats would be in anyway different from the Republicans if they get control of the House. Faced with the lesser of two evils choice that you keep offering, most people will settle for the evil they already know.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#21)
    by Jlvngstn on Wed May 24, 2006 at 08:14:15 AM EST
    From 12-16-05
    Democrats yesterday charged that Republican leaders on both ends of Pennsylvania Avenue are going to extraordinary lengths to protect DeLay. Once the House adjourns for the year, it will not reconvene until the end of January, the latest reassembly since 1933, said House Minority Leader Nancy Pelosi (D-Calif.). Pelosi contends that the timing is designed to protect DeLay from a challenge to his hope of reclaiming his leadership post.
    Are the dems protecting jefferson???

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#22)
    by squeaky on Wed May 24, 2006 at 08:50:34 AM EST
    JR-hypothetical argument about what LNILR would say if the house majority was dem is absurd. This is your most hilarious line though:
    He is simply trying to paint them with Jefferson's corruption, and that's BS. They don't need to be painted with anything but their own corruption.
    LNILR is not trying to paint anything here. This post has to do with Jefferson's Seperation of Powers defense and how it is "just won't cut it". The abundance of republican corruption stands on its own. LNILR did not mention it nor does he have to. Need some more rope JR. it seems that all the republican scandals are wearing you down into a state of apoplectic hypersensitivity. The hallucinations must be a side affect. Take a pill. It may help as more republican indictments are on the horizon.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#23)
    by Jlvngstn on Wed May 24, 2006 at 12:30:00 PM EST
    WASHINGTON (CNN) -- House Minority Leader Nancy Pelosi sent a letter Wednesday to U.S. Rep. William Jefferson asking him to resign from the House Ways and Means Committee days after FBI agents raided his Capitol Hill office. "In the interest of upholding the high ethical standard of the House Democratic Caucus, I am writing to request your immediate resignation from the Ways and Means Committee," Pelosi wrote.
    There it is JP.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#24)
    by squeaky on Wed May 24, 2006 at 12:33:09 PM EST
    Jlvngstn-Jefferson, as you know, rejected the plea from Pelosi.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#25)
    by Jlvngstn on Wed May 24, 2006 at 12:35:54 PM EST
    PS Brilliant move by the repubs to make a stink about the separation of powers argument here. What it does is keep the story in the national headlines every night with a Democrat's alleged criminal behavior at the center. this way we get the separation of powers argument which covers their rears and a nightly smearing of the democratic party. Jefferson for demo of the year!!!

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#26)
    by Sailor on Wed May 24, 2006 at 12:35:59 PM EST
    Damn Jlvngstn, you beat me tto it. I would like to add this tho:
    Last November, Republicans rewrote an 11-year-old party rule that required a party leader to step aside if indicted, and instead made it possible for such a leader to maintain the party position. [...]
    The next day, the full House approved -- on a largely party-line vote of 220 to 195 -- changes that Democrats contended would make it harder to launch investigations and would undermine their effectiveness.
    rethugs didn't admonish delay when he was indicted, they changed the rules. Jefferson hasn't even been charged yet, and dems are calling for him to step down. Pretty clear cut difference in their relative ethics.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#27)
    by Jlvngstn on Wed May 24, 2006 at 12:36:38 PM EST
    yes Squeaky, hence my next post.....

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#28)
    by aw on Wed May 24, 2006 at 01:20:22 PM EST
    A little off topic, but re the comment above saying that anyplace can be searched: this reminds me of when Ken Starr wanted to search the Clintons private quarters in the White House. I recall they had someone search through all their private things, including the Clintons' underwear drawers. Wonder how that would go over with the current occupants?

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#29)
    by squeaky on Wed May 24, 2006 at 01:28:16 PM EST
    Wayne Madsen chimes in with this tinfoil, although plausible, analysis. I do not put anything out of reach for these creeps.
    The recent Saturday raid by 19 armed FBI agents on the House of Representatives office of Rep. William Jefferson was not a warning to the current 109th Congress but a threatening broadside against the 110th Congress, which looks to have at least one house controlled by the Democrats. The unitary fascist Bush White House is sending a message to a future Democratic Congress -- "engage in investigations, hearings, subpoenas of Bush administration current and ex-officials, and impeachment notions, and this type of ransacking of congressional offices will be the rule and not the exception."
    Good one Wayne.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#30)
    by squeaky on Wed May 24, 2006 at 04:14:32 PM EST
    Breaking: Speaker Hastert Under Investigation By the FBI Over Abramoff Ties
    No wonder he doesn't want his office searched. think progress

    Let's face it: Members of both parties are quicker to call for the resignation of an accused member of the opposition. Thus Democrats called for DeLay to step down, but so far are silent about Jefferson. Republicans were tolerant of DeLay, but went after Jim Wright.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#32)
    by scribe on Wed May 24, 2006 at 05:42:41 PM EST
    Fight for Justice: You need to scroll up about 8 comments. While the Rep. in question has not been indicted, he still has been asked to step down from Ways and Means - no small step, that.

    Let's reverse this: If separation of powers keeps the DOJ out of Congress, do Congressmen have to answer subpoenas? Would an executive branch official be justified in refusing a Congressional subpoena due to separation of powers? Why or why not?

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#34)
    by Sailor on Wed May 24, 2006 at 08:29:24 PM EST
    Let's face it: Members of both parties are quicker to call for the resignation of an accused member of the opposition. Thus Democrats called for DeLay to step down, but so far are silent about Jefferson.
    You, sir, were proven wrong several comments above. In the future please try to pay attention.

    Re: FBI Search of a Congressman's Office v. Separa (none / 0) (#35)
    by squeaky on Wed May 24, 2006 at 08:45:47 PM EST
    If separation of powers keeps the DOJ out of Congress, do Congressmen have to answer subpoenas?
    You are presuming a false premise as no one is arguing that point, except you, that is. With comments like that I am starting to believe Madsen:
    The unitary fascist Bush White House is sending a message to a future Democratic Congress -- "engage in investigations, hearings, subpoenas of Bush administration current and ex-officials, and impeachment notions, and this type of ransacking of congressional offices will be the rule and not the exception."


    I'm a rethuglican and was all over DeLay from the get go. In fact I wrote the piece for the Sierra Times. Which is pretty far right. No Congress critter should be above the law. It gives the government a bad name. Say. That might not be such a bad idea.