The Jefferson Raid: Are Republicans Blowing Another One?

by Stuart Rothenberg June 1, 2006 · 12:02 AM EDT

Whatever you think of the constitutional issues surrounding the FBI raid on the Capitol Hill office of embattled Rep. William Jefferson (D-La.), there is little doubt that, politically, Republicans are blowing another opportunity.

To most Americans, Jefferson appears to have taken a bribe. Prosecutors say they have it on videotape. Obviously, until the Congressman is tried, we won’t know whether a jury will find him guilty. But at this point, there appears to be plenty of incriminating evidence.

Instead of taking advantage of the Democrats’ trouble and keeping the limelight on Jefferson’s alleged illegalities, Republicans in Washington, D.C., are turning an act of public corruption into a constitutional Separation of Powers controversy, putting them in the position of defending Congress’ rights and privileges against encroachment from the executive branch.

Rep. Tom DeLay (R-Texas), for example, said the FBI raid is “incredibly outrageous.” House Majority Leader John Boehner (R-Ohio) said he has “serious concerns” about the raid, while Senate Majority Leader Bill Frist (R-Tenn.) said that he, too, is “very concerned” about it.

Former Speaker Newt Gingrich (R-Ga.), never known for understatement, called the FBI’s action “the most blatant violation of the constitutional Separation of Powers in my lifetime.” And current Speaker Dennis Hastert (R-Ill.) complained that the Justice Department crossed “the Separation of Powers line.”

Democrats expressed some concern as well, but they were far more restrained in their criticism of the FBI or in asserting that agents of the executive branch had trampled on the Constitution.

House Minority Leader Nancy Pelosi (D-Calif.) said, “The executive branch must tread very carefully when using such aggressive tactics against members of the legislative branch.”

Senate Minority Leader Harry Reid (D-Nev.) was even more temperate, saying only, “I will be happy to take a look at this. From the little bit that I know about it now, I’m not going to beat up on the FBI.”

Americans already think Congress is doing a poor job: Congress’ job approval is down to about 25 percent in most polls. Jefferson’s legal jeopardy is likely to add to the perception that Congress is, at best, inept and, at worst, full of crooks.

So what are Members of Congress — particularly high-profile current and former Republican leaders in Congress — doing? They are defending the institution and, by extension, somebody who appears to have broken the law and violated the public trust.

Talk about taking lemonade and turning it back into a lemon. What next, will House Republicans defend bird flu?

I am aware that Roll Call published an editorial (“Congress Invaded,” May 26) arguing that the raid was unprecedented and implying that it should not have been authorized by the Justice Department or a federal judge. I just don’t agree with it.

If there are constitutional issues involved in the FBI raid, Jefferson and other Members of Congress are free to raise them in court. But it is politically incomprehensible for Republicans to be rushing out to beat up on the Justice Department, the FBI and, by implication, their own president.

I’m not an expert in constitutional law — a couple of law courses in college and graduate school don’t qualify me as a legal authority — so I’ll leave it to the experts to make the legal arguments. But the principle of Separation of Powers seeks to limit governmental power, not shield people who break the law.

Congress has established a campaign finance system that benefits incumbents. Many Members of Congress participated in drawing their own districts, either as state legislators or as politicians able to influence state legislators. Now we are told by those same Members of Congress, and by others, that Congressional offices are off limits to FBI investigators, even if the FBI obtains a search warrant from a judge.

Sorry, but I expect that most Americans would agree with Sen. John Warner (R-Va.), who said, “Congress should not set itself apart from citizens. We should be treated alike when it comes to criminal codes.”

Given that until recently the House Committee on Standards of Official Conduct couldn’t even get its act together enough to meet, it isn’t likely that many Americans will have much confidence in Congress’ ability to police itself.

It’s particularly amusing that Republicans, who often rail against legal technicalities that let criminals go free — and who had no trouble accepting domestic surveillance that was not authorized by the Foreign Intelligence Surveillance Court — are now defending Congress’ constitutional “prerogatives” and demanding that any evidence gathered from the FBI raid of Jefferson’s office be returned.

Members of Congress, and the media, who rush to defend Jefferson can insist until they turn blue that they are defending constitutional principle. But most Americans will see their comments as Members — and especially Republican Members — trying to protect themselves from the same scrutiny that average Americans face.

I’d be willing to bet that most Americans think it’s more outrageous for a Member of Congress to take a $100,000 bribe than for the FBI to raid his office looking for evidence. I sure do.