Judge: Search of Congressional Office was Legit

Another blow was struck today in the ongoing battle between those who would like to expand and those would prefer to limit the power of the executive branch. The FBI search of Rep. William Jefferson's office (D-LA) caused a bipartisan uproar because of separation of powers issues between the executive and the legislative branches of government. At the heart of the concern is the speech and debate clause of the constitution, which explicitly forbids having any member of Congress arrested while Congress is in session (with the exceptions of treason, felony and breach of the peace) to remove the possibility of an overly exuberant president, with control over the FBI, from intimidating representatives or preventing them from voting on key legislative matters. While many Congressional reps feel that this clause should exempt their offices from searches (and in fact, such a search has never taken place until now) a federal judge ruled that the search was legal and that the clause was not intended to shield elected officials from prosecution for any wrongdoing.

In a 28-page opinion, Hogan dismissed arguments that the first-ever raid on a congressman's office violated the Constitution's protections against intimidation of elected officials.

Jefferson's theory of legislative privilege "would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime," the judge said.

Hogan acknowledged the "unprecedented" nature of the case but said "a Member of Congress is generally bound to the operation of the criminal laws as are ordinary persons."

Congress' effectiveness "is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants," said Hogan, who had approved the FBI's request to conduct the overnight search of Jefferson's office.
Representatives on both sides of the aisle have interpreted this decision as a blow to their own authority and independence in favor of the president's, and we can fully expect this decision to be appealed all the way to the Supreme Court. However, it should be noted that the search was conducted under authorization of a warrant (which the same judge approved) in search of evidence to bring an indictment against Jefferson in an ongoing bribery investigation. Which makes the issue complicated; it's clearly in the public's best interest to ensure that elected officials who have accepted bribes be outed and prosecuted as quickly as possible. The drafters of the constitution also recognized that it would be an unacceptable situtation to have members of the legislative branch afraid for their own safety and security because of the president influence.

Parts of the judge's decision does make sense, however. It's doubtful that the speech and debate clause exists to provide congressional representatives with a safe haven for storing evidence of a crime. And the judicial oversight required for obtaining a search warrant is a (mild) palliative to fears of future FBI overreaching, and in that context it doesn't seem to be a substantial increase in executive authority after all. The real issue at hand is whether it's worth tolerating illegal activities by elected officials in order to preserve independent branches of government. Expect a revisit on this issue by greater legal minds than mine before all is said and done.

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