Thursday, May 25, 2006

A corrupt Congress is shocked to discover a lawless Executive


I've noticed several attempts in the news to connect the FBI's raid on Congressman Jefferson's office with the Bush Administration's heavy handed assertion of executive authority.

I think this is a distraction. There is no constitutional or legal bar to the search that I am aware of. The Speech and Debate Clause does not prohibit it. Although as a matter of tradition and comity, the Executive should avoid invading the offices of Congressmen and Senators whenever possible, in this case the warrant authorizing the search came only after Congressman Jefferson refused to obey a subpoena for documents. The Speech and Debate clause, and indeed, the principles of respect and comity between the branches should not be employed to insulate government officials from liability for acts of illegality and corruption.

And that is the real issue: Illegality and corruption, both by members of the Executive branch *and* by members of Congress.

The Bush Administration has, over the past six years, detained American citizens without any of the protections of the Bill of Rights, engaged in cruel, inhuman and degrading treatment of detainees, imposed new forms of secrecy to insulate itself from oversight both by the Press and by Congress, used the state secrets privilege to shut down any investigation into its mistreatment of detainees, hid and prevaricated about the evidence justifying, the reasons for, and the cost of Iraqi war, and begun a massive spying program on American citizens. Throughout all of these events, the United States Congress has been essentially supine, unable or unwilling to lift a finger to oppose an executive branch that was simultaneously incompetent, arrogant and out of control. And now, when the FBI catches redhanded a Congressman engaged in the most egregious act of corruption, *now* members of Congress are upset that the Executive is asserting too much authority.

They have their nerve.

Quite frankly, I find the bipartisan closing of ranks over this issue disgusting. If Congressmen are interested in Executive overreaching, they should start demanding that the President justify his NSA program; instead they doing everything they can to paper over its illegalities. They should hold hearings on how the Executive misused and manipulated intelligence reports, hearings that have repeatedly been promised and have repeatedly been postponed. They should hold hearings on the Administrations's policies of no-bid contracts in Iraq and elsewhere, and the many reports of corruption, incompetence, and war profiteering by these very same contractors who didn't have to engage in competition or oversight. They should investigate the President's decisions about torture, about rendition, about detention policies, about, well, you name it-- all the incompetent and corrupt activities of this most incompetent and corrupt Administration.

Instead of being upset about the President spying on Americans without a warrant, and in violation of federal law, the members of the U.S. Congress are upset about the FBI searching a Congressman's office with a legal warrant. Instead of being upset about the cruel, inhuman and degrading tactics of the CIA and military interrogators, members of the U.S. Congress are upset that a corrupt Congressman's office has been disturbed. Instead of being upset about abuses of government contracting and incompetence that have cost the tax payers countless sums of money and sapped resources from our troops overseas, members of Congress are busy protecting corruption in the halls of Congress itself.

Make no mistake: the real reason why Congress is so concerned about the raid on Jefferson's office is that many of them know that corruption within Congress is rampant. If the FBI and the Justice Department can start getting serious about investigating corruption in Congress, many of their colleagues (and possibly they themselves) could be next. Is it any accident, do you think, that instead of trumpeting corruption by a Democratic Congressman, Speaker Hastert-- who himself is rumored to be under investigation in the Abramoff affair-- is objecting loudly to the search of Jefferson's office?

The American Constitution is premised on the idea that any Executive overreaching that might take us on the path to tyranny and dictatorship would be met with Congressional objection and Congressional oversight. For six years we have been subjected to an arrogant, self-righteous, and incompetent Administration, which has grabbed for power and avoided accountability in every way it could, chipping away at Americans' proud traditions of freedom, harming our country's interests around the world and undermining the deliberative processes that produce sound policy and good governance. It is an Administration blinded by smug self-righteousness, devoted not to the development of competent and sound policies for the governance of our country, but to the concentration and perpetuation of its own power. But at the moment that we need the Congress most, it is feckless, corrupt, and venal, offering no resistance to mounting evidence of this Administration's illegality and incompetence. If Congress now finds that Executive power is encroaching a bit too close for comfort, it is poetic justice, for this Congress has thoroughly abdicated its constitutional responsibilities to protect the American people from Executive overreaching.


A right on post, Jack. That members of Congress would (finally) express bipartisan opposition to an out of control President only when they have become the target--in the context of an entirely legitimate criminal investigation--is shameful, galling, depressing, messed up...

May I just say, Amen, Brother?

Amen indeed. Basically, Congress is saying that they don't care if the President acts as if he's above the law; they just want to be above the law as well.

Excellent point. Personally, I'm all for these sorts of eminently legal tactics against crooked congressmen. The one thing that seems sinister about this is that there were no similar raids against Republicans under similar circumstances (I think Digby made this argument earlier, but I don't remember; it may have been someone else). If the FBI is becoming a partisan tool, that's disturbing.

Terrific post Prof. Balkin.

You can believe that some GOP leaders in Congress had an overnight conversion - which is to accept an alternate reality - or you can adopt the trenchant analysis of this post, and be a part of the reality-based community.

Well, I question the last sentence of this post, because I don't see how the Executive is encroaching on Congress at all. There simply isn't a constitutional issue here; on that, right and left are for once agreed. In fact, and despite my first sentence, there hasn't ever been a post on this site that I agreed with more.

WOW! But Professor Balkin, what do you REALLY think about this state of affairs?

The separation of powers should be subject to transparency. None of the branches should be immune from the application of the law that the rest of us are bound by (except as the Constitution may require or permit). Nixon could not hide. Congress should not be permitted to hide. Perhaps this is why we need judicial review. But then shouldn't there be more transparency with the unelected judiciary?

Great post. Most disturbing to me is the juxtaposition of well conspired outrage on Rep Congress' part for the direct hit inside their own sacred home walls vs the hit they've been asking their countrymen to abide by without defense from elected members of Congress.

It's hard to work up many tears for Hastert, but I wonder if the better course, for comity and the rule of law, would have been for the Executive to have sought an order compelling compliance with the subpoena. There would have been an adjudicative process, during which the issues of comity and privilege could have been dealt with in an open and professional way. And you'd have someone other than the Mayberry Machiavelli's deciding when and who to raid on the Hill.

Well, it may be that the Jefferson investigation was not a "heavy handed assertion of executive authority", and I agree with all you have to say about Congress's abdication. I expect Jefferson was caught the way many other Congressmen have been caught, by simple greed and the inability of people to keep their mouths shut.

That said, it is certainly convenient that as Republican congressmen in platoons are being indicted, tried, and imprisoned for accepting bribes in the millions, when along comes a Democrat (bonuses for being black and being from Louisiana, the black ingrate stat) with his laughable $75,000 in the freezer and his suitcase full of hundreds.

Um, isn't "an order compelling compliance with the subpoena" just a tad redundant, in as much as subpoenas are legally binding on their own? They ALREADY constitute an order compelling compliance.

According to Raw Story, Bush is also having the FBI question a number of Congressmen about the NSA leak. The Jefferson story gives him cover for something much more dubious.

We probably don't have a dog in this fight, but it looks pretty bad. I can't imagine Bush failing to take advantage of this opportunity.

It is our understanding that the Rethug explanation or dominant narrative for their exploitation of hurricane victims -- the IX/XI'ing of Katrina -- was evil black people, and especially corrupt black Louisiana democrats like Marion Coleman Nagin. (See alol the civil luminaries who decribed NOLA as a toilet that had to be flushed.) So now they have what appears to be a solid case against a perfect specimen, and the Dumbocrats who stabbed Murtha in the back are tripping over themselves to defend the guy. If Jefferson represents the archetype of what the administration says is the cause for the disastrous handling, then certainly they should distance themselves from him, or risk not only simple fallout but also failure to disprove a very important fallacy about a massive crime that has still not been addressed or for that matter completed. Trying, and failing, to defend Jefferson will make them look stupid and the racists look right.
These are the same nominal opposition representatives who aren't doing anything about any rights violations outside their offices. The don't really care about universal phonetapping, let alone torture, and it is a kind of weak and poorly aimed poetic justice to see their horror in realizing that laws might apply to them.

I am not at all impressed by the post and I am not saying "amen."

Sure, it's legal to use the FBI to search congressional offices. One can imagine circumstances in which the FBI would be the only agency of government capable of executing a particular search.

The fact remains that Congress does enjoy limited immunity under Article I.6 specifically to avoid the situation in which the key counterbalance to Executive power is subjected to intimidation.

Furthermore, Professor Balkin fails to acknowledge the political reality that the FBI has been used as a political tool to blackmail or manipulate Congress. Consider this possibility: suppose that William Jefferson had on his computers evidence of corruption by contractors involved in the rebuilding of New Orleans. The FBI could just as easily seize that evidence to protect President Bush.

There could be political strategy memos of use to the opposition party. There could be staffers's private communications, reeled in by the same net in disregard of their Fourth Amendment protections.

What is driving what I would call the reckless commentary supporting the use of the FBI for routine police work is disgust at congressional corruption. But through our history, Congress has almost always been corrupt to some degree. This Congress is probably not quite as corrupt as those of the latter half of the nineteenth century, though I wouldn't care to wager.

Here are some simple questions that should be asked: (1) Rather than tear down the fence of 219 years of tradition, why didn't the FBI deputize the Capitol Police to do the search, ideally with witnesses from both parties and the FBI present? (2) If the corruption case is so open-and-closed, why hasn't the Congressman been indicted? (3) How will the Administration use the precedent that has been created as it interrogates members of Congress over "leaks" regarding its illegal invasion of privacy by the NSA?

I think the denigration of Congress--however well deserved in the case of the present members-- is demagogy when used in the service of counseling reckless disregard for a traditional protection against an out-of-control Executive.

Rather 99 William Jeffersons go free than even one Matthew Lyon be unjustly jailed.

Total agreement here with one sad exception--the incompetence is studied and is accomplishing exactly what they planned--our fear and insecurity are increased so we'll more readily accept their reforms, plus more money in their secret coffers.

Is it incompetence when your perceived incompetence works toward your larger agenda and hides your true intent?

While Jr has always been a screw-up, he's what they wanted--a mouthpiece who wouldn't ask too many questions and was known for his incompetence...and the lowered expectations from the 2000 campaign continue to impact the nation most cruelly.

The only way out of the labyrinth of suffering is to forgive.
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