Bob Barr

When It Comes To Raid on Capitol… Congress Is off Base
The Marietta Daily Journal

May 30, 2006

In March 1861, a newly elected President Abraham Lincoln spoke for the first time to the people of the United States as their chief executive; he said, "I take the official oath ... with no purpose to construe the Constitution or laws by any hypercritical rules."

Whether in his little more than one term in office our 16th president succeeded fully in that mission is not the question today, some 145 years later. What is the question for the people of this country in 2006 is: What in the world has happened to our leaders in the Congress? What is it that motivates them to leap to the defense of a demonstrably corrupt member of Congress—William Jefferson of Louisiana—based on a "hypercritical" and historically wrong interpretation of the so-called speech and debate clause found in the First Article of the Constitution?

Why would the leaders of the House of Representatives of both political parties seek a fight, if not a confrontation, with the Bush administration over the simple fact that the FBI executed a court-ordered search of Rep. Jefferson's Capitol Hill office in order to discover evidence buttressing their apparently already solid case of bribery against him? Is it simple pique with a president suffering badly in the polls? Is it part of an effort to intimidate federal law enforcement from aggressively uncovering evidence of corruption generally in congressional ranks? Is it arrogance? Ignorance? All of the above?

Whatever the reason, the American people ought to be mighty concerned.

That House of Representatives leaders have chosen this fight based on the "speech and debate" clause—which has never been held to shield federal legislators from being held accountable for criminal acts such as bribery—is a clear sign they fail to understand the very oath of office each took when assuming their current positions. That they speak about the FBI's actions as raising serious questions about "separation of powers" indicates they do not understand even the most fundamental responsibilities of the three branches of our government.

The fact of the matter is, the FBI was doing precisely what it was supposed to be doing in this instance; and operating pursuant to laws enacted by Congress itself. It was investigating allegations the laws of this land directed be investigated: Bribery of a high public official. The federal investigators appear to have carried out their congressionally authorized mission in the precise manner both the Constitution and laws of this land directed them to do: They filed a sworn application for a search warrant with a sitting federal judge, who approved the warrant which the agents then executed.

In executing the warrant on Rep. Jefferson's office, the agents were more mindful of protocol and appearances of overreaching than they would be if the target of their actions were "Joe Citizen." They conducted the judicially approved search after hours and on a weekend, when neither the public nor the media would not be present.

It's hard to imagine how the FBI could have done anything more to make clear it was operating fully within the bounds of the law. Except, perhaps to have notified the Congress in advance, which it seems some of its leaders are now upset the Bureau did not do. Requiring the FBI to announce in advance to the "landlord" of a building that it intends to conduct a search of the office of one of its members, is not and should not be a requirement for any law enforcement agency. A requirement to the contrary would allow the House to marshal its not-inconsiderable legal power to delay if not thwart the planned search, and would provide clear opportunity for the target to remove or destroy evidence.

If the House leadership is truly concerned with the possibility that, in seizing certain items from Rep. Jefferson's office, they gained access to documents or computer records of material actually protected by the "speech and debate" clause, then their remedy is not to blast the administration for conducting a search to gain evidence to prove the corruption of one of its members, but to file a motion with the court so the court—independently—conducts a review of the seized evidence. This would protect the narrow, but legitimate congressional interest in ensuring the executive branch does not chill exercise of any member's legitimate functions covered by the speech and debate clause. At the same time, it would reassure the American people that the Congress itself understands no member is above the law, and that it also comprehends that bribery is not a protected activity under that constitutional provision.

Instead, the ham-handed over-reaction to the FBI search will likely confirm in the minds of many Americans the perception that the Congress does not understand or accept these basic premises of representative government; and that the institution itself is populated by arrogant officials who view themselves as above the law and not subject to legal process like the rest of us. If congressional poll numbers sink even lower as a result of this episode, the Congress will have only itself to blame.

Now, lest anyone misinterpret my criticism of the congressional leadership in this matter as defense of an administration that has run roughshod over the Congress for five years—expanding its power at the expense of the legislative branch in ways that are deeply troubling to notions of limited government and of a president held in check by congressional oversight and duly enacted laws—let me say I am glad the Congress has finally found some backbone. I just wish they had chosen to exercise it on a matter of higher note and sounder basis.

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.