Sunday, May 28, 2006

Jeffersonian Corruption -- a follow-up

The Monk (who has been neck-deep in trial work for two months) didn't realize that William Jefferson, the Louisiana Congressman at the center of the Congress-Presidency power struggle over whether the Justice Department can search the Congressman's offices, is a Democrat. That makes Hastert's defense of him inconceivably stupid -- does any person with a shred of sanity believe that Nancy Pelosi would similarly stand up for, say, Iowa Republican Steve King? She certainly didn't defend Tom DeLay and he was not caught on tape doing the exact illegal act that formed the basis of the accusation against him!

Here's the inestimable Mark Steyn on why the Republicans in Congress have earned their inescapable moniker of "the stupid party" on this:

. . . the Republican leadership did something incredible this week. When you have one of the most obviously destructive stories for the Democratic Party that's going on, instead of just stepping neatly out of the way, you intervene in the story on behalf of the Democrat, and in an indefensible cause. I mean, basically, Denny Hastert and the Republican leadership have said we object to the Department of Justice investigating this Congressman, because we think Congressman should be beyond investigation, that they're some protected imperial class, that they're the equivalent of the Saudi royal family, or every man his own Kennedy in a Massachusetts speeding case. It is disgusting. This is a republic of citizen legislators, and they should not be above the law.

The Contract With America in 1994 stated that Congress would ensure that the laws of the United States applied equally to members of Congress.

So much for that.

UPDATE AND BUMP: The Monk wanted to note the column in the Wall Street Journal earlier this week by one of The Monk's former professors at U.Va., Robert F. Turner, which Opinion Journal published for free on its site today. Prof. Turner notes that the Pelosi/Hastert argument against the FBI's investigation of Rep. Jefferson's corruption is rooted in the "Speech or Debate" Clause of the Constitution -- which expressly exempts treason and felonies (bribery is one) from its grant of immunity. Here's Prof. Turner's comments and his summary of a Supreme Court decision that covers this situation:

The "Speech or Debate" clause is contained in Article I, Section 6, which provides that members of Congress "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." The provision was designed to protect legislators from civil law suits and unwarranted harassment by the executive branch, such as charges of defamation stemming from criticisms of the president during congressional debate.

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But as the Supreme Court observed in the 1972 case of U.S. v. Brewster, the clause was never intended to immunize corrupt legislators who violate felony bribery statutes--laws that have expressly applied to members of Congress for more than 150 years. In Brewster, the court noted the clause was not written "to make Members of Congress super-citizens, immune from criminal responsibility," adding: "Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator."

Such behavior is therefore not protected by the Constitution. The purpose of the Speech or Debate Clause was to protect the integrity of the legislative process, and the court noted that bribery, "perhaps even more than Executive power," would "gravely undermine legislative integrity and defeat the right of the public to honest representation."

A dozen years ago, I testified before the House Committee on Administration on this same basic issue. Newt Gingrich and other reformers were trying to bring Congress under the same ethics laws it had imposed upon the rest of the country, and some indignant legislators seemed confident that the laws were not supposed to apply to them. The hearing was held in a small room in a part of the Capitol Building off-limits to the public, with exactly enough chairs for members, staff and the three witnesses.

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Critics of the Gingrich proposal did not hear what they wanted. Some seemed genuinely shocked when I informed them that, in Federalist No. 57, James Madison noted one of the constraints in the Constitution to prevent legislators from enacting "oppressive measures" was that "they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society."

It is increasingly rare to find a spirit of bipartisanship in Congress these days. So a display of the spirit would have been a good thing to see--especially in a time of war--but for the fact that the issue now uniting Republican and Democratic leaders is an outrageous assertion that members of Congress are above the law, and that the Constitution immunizes legislators who betray their public trust in return for bribes from investigation by the executive branch.

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