Now They’re Worried About Separation of Powers

The separation of powers has taken quite a battering under the Bush administration: the president's "signing statements" alter or even negate the plain meaning of laws passed by Congress; Bush attempts to employ executive-branch military tribunals instead of courts whenever possible; he doesn't bother to observe laws passed by Congress requiring executive agencies to get a court order for domestic wiretaps; etc. You know the litany.

The Republican-led Congress has been virtually supine throughout all of this, illustrating once again how political parties can short-circuit the entire idea of separation of powers. But one thing the executive branch has done lately really has lit a fire under House Speaker Dennis Hastert: the FBI raid of Rep. William Jefferson's office. This is a separation of powers issue that Congress actually cares about. The Washington Post quotes Hastert:

"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress," he said. "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."

It's easy to scoff at this — the constitutional right of congressmen to accept suitcases full of money must be protected! — but actually, Hastert is right. One tip-off is that the Viet Dinh, chief author of the PATRIOT Act and a man who has seemingly never met a civil liberty or constitutional protection he would not abrogate, defends the raid, as the Post reports.

The raid is just as unprecedented as Hastert says, and there's a reason this sort of thing hasn't been done before: it does indeed have the potential for abuse as a means to intimidate the legislature. The FBI didn't explicitly violate Article I, Section 6 of the Constitution — "[Congressmen and senators] 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" — but traditionally "Parliamentary privilege" and its analogs are given a wide interpretation. University of Baltimore Law Profess Charles Tiefer has been quoted in several sources spelling out what's at stake. He told a reporter for CongressDaily:

"Congress is frequently at odds with the FBI and the Department of Justice and other investigative or security agents working with them," he said. "It must intimidate critical overseers to know that the FBI feels they have the power to seize their file cabinets without even serving a subpoena beforehand."

And as he told the Washington Post: "The Framers, who were familiar with King George III's disdain for their colonial legislatures, would turn over in their graves."


4 thoughts on “Now They’re Worried About Separation of Powers

  1. Liberty and Justice May 23, 2006 / 11:40 am

    Liberty and Justice TrackBack
    I understand the fact that we should be very careful before we accept raids like this; but we should also fight corruption in our respective governments. At the moment a Rep. is considered a suspect of criminal investigation, an independent judge signs a warrant, it seems logical that the FBI should be able to ‘raid’ that Rep’s office.

  2. J. M. Deutch May 23, 2006 / 1:27 pm

    Your IRS wants you consider cash to be evil. The only people who see cash by itself as an indication of criminal activity are either fools or Nazi collaborators.

    Sadly for the IRS, the money still says “legal tender for all debts, public and private.” If you’ve ever worked at business where the IRS siezed the bank accounts without due process when there were paychecks to be paid, then you would see cash for what it is: legal and spendable.

  3. Coletrain May 24, 2006 / 9:43 pm

    Personally, even if Rep. Jefferson is guilty as sin – I prefer the idea that the FBI has some restrictions before they can go after him than otherwise. The concept of Seperation of Powers assumes that each branch of government may not have the most virtuous motives – so those motives are put at odds to negate their effect.

  4. Daniel McCarthy June 1, 2006 / 4:29 am

    I agree with Coletrain. I also just can’t see that what the FBI did was necessary — all the bureau had to do was inform the sergeant-at-arms to secure the office and deliver the materials to them. That’s not as convenient for the investigators, or as effective, as doing it themselves, but it preserves a very firm separation of powers.

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