Constitution's separation of powers doctrine ? - Big Big Forums

Jolie Rouge · 05-24-2006, 09:20 PM

House leaders demand FBI return papers
By LAURIE KELLMAN, Associated Press Writer

WASHINGTON - In rare, election-year harmony, House Republican and Democratic leaders jointly demanded on Wednesday that the FBI return documents taken in a Capitol Hill raid that has quickly grown into a constitutional turf fight beyond party politics.

"The Justice Department must immediately return the papers it unconstitutionally seized," House Speaker Dennis Hastert, R-Ill., and Democratic Leader Nancy Pelosi, D-Calif., said in a statement.

After that, they said, Democratic Rep. William Jefferson of Louisiana must cooperate with the Justice Department's bribery investigation against him. The leaders also said the Justice Department should not look at the documents or give them to investigators in the Jefferson case.

The developments capped a day of escalating charges, demands and behind-the-scene talks between House leaders and the Justice Department that ended with no resolution, according to officials of both parties.

House officials were drafting a joint resolution frowning on the raid. And Judiciary Committee Chairman James Sensenbrenner, R-Wis., announced a hearing next week titled, "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"

Constitutional confrontation aside, Pelosi said Jefferson should resign from the powerful Ways and Means committee. He refused.

At the same time, Jefferson filed a motion asking the federal judge in the case to order the FBI to return the material it seized from his office.

The Justice Department dug in, repeating that the raid was carried out only after Jefferson refused to comply with a subpoena and only then with a search warrant signed by a judge. "The actions were lawful and necessary under these unique circumstances," said Deputy Attorney General Paul McNulty.

The constitutional fight was set in motion last Saturday night, when the FBI raided Jefferson's legislative office in pursuit of evidence against him in an investigation of whether he accepted hundreds of thousands of dollars in a bribery deal.

Historians say the search was the first of its kind in Congress' 219-year history. Reaction has crossed party lines and brought in all three branches of government.

Hastert, Pelosi and several other leaders of both parties in the Senate say the weekend raid violated the Constitution's separation of powers doctrine. "These constitutional principles were not designed by the founding fathers to place anyone above the law," Hastert and Pelosi said. "Rather, they were designed to protect the Congress and the American people from abuses of power, and those principles deserve to be vigorously defended."

Not all lawmakers agreed. "These self-serving separation of power arguments" have no basis in law, said Sen. David Vitter, R-La., in a letter to GOP leaders. He noted that search warrants had previously been served on members' homes, including Jefferson's.

"A distinction that would treat searches in their offices completely differently is superficial and baseless," Vitter wrote. "The American people will come to one conclusion — that congressional leaders are trying to protect their own from valid investigations."

No one was defending the Louisiana congressman other than Jefferson himself.

"In the interest of upholding the high ethical standard of the House Democratic Caucus, I am writing to request your immediate resignation from the Ways and Means Committee," Democratic leader Pelosi wrote him.

"With respect, I decline to do so," he wrote back, leaving it to the House to try to pressure him out of the seat or strip him of the post by majority vote.

"I will not give up a committee assignment that is so vital to New Orleans at this crucial time for any uncertain, long-term political strategy," he added.

Away from the Capitol, Jefferson filed a motion that mirrored parts of Pelosi and Hastert's statement. In it, he asked U.S. District Chief Judge Thomas Hogan to order the FBI to return all of the documents taken from his office during the 15-hour search. Hogan, appointed by the President Reagan, was the judge who last Thursday issued the warrant authorizing the search.

Ethics investigations involving lawmakers and executive powers claimed by President Bush are expected to be issues for many candidates in the upcoming midterm elections.

House Democrats have been building a campaign around what they call a Republican "culture of corruption" focused on influence peddling and convicted lobbyist Jack Abramoff.

Many Republicans, meanwhile, are trying to distance themselves from Bush, whose public approval ratings have fallen with the continuing war in Iraq and disclosures of secret domestic wiretaps without warrants.

Hastert on Tuesday complained directly to Bush that the raid violated the Constitution's separation of powers doctrine.

Justice Department officials said there was no similar outcry when FBI agents searched a federal judge's chambers in a bribery investigation in the early 1990s. In that case, U.S. District Judge Robert Collins of Louisiana was convicted of bribery, after agents found marked bills in his office.

The Collins case is the only one in which a federal judge's office has been searched, the department said.

http://news.yahoo.com/s/ap/20060524/...ltBHNlYwM3MTY-

Jolie Rouge · 05-25-2006, 06:49 PM

Bush Orders FBI-Congress Documents Sealed
May 25 3:20 PM
By LAURIE KELLMAN -- Associated Press Writer

WASHINGTON - President Bush stepped into the Justice Department's constitutional confrontation with Congress on Thursday and ordered that documents seized in an FBI raid on a congressman's office be sealed for 45 days.

The president directed that no one involved in the investigation have access to the documents under seal and that they remain in the custody of the solicitor general.

Bush's move was described as an attempt to reach a cooling off period in a heated confrontation between his administration and leaders of the House and Senate. "This period will provide both parties more time to resolve the issues in a way that ensures that materials relevant to the ongoing criminal investigation are made available to prosecutors in a manner that respects the interests of a coequal branch of government," Bush said.

In a statement, Bush said he recognized that Republican and Democratic leaders in the House had "deeply held views" that the search on Rep. William Jefferson's Capitol Hill office violated the Constitution's separation of powers principles. But he stopped short of saying he agreed with them. "Our government has not faced such a dilemma in more than two centuries," the president said. "Yet after days of discussions, it is clear these differences will require more time to be worked out."

http://www.breitbart.com/news/2006/05/25/D8HR07IG2.html

Jolie Rouge · 05-27-2006, 01:23 AM

Lawmakers, quiet on your rights, roar about theirs
Fri May 26, 7:21 AM ET

Now we know what it takes to make Congress mad enough to stand up for constitutional rights.

When the government snoops on your phone calls and records without warrants, lawmakers barely kick up a fuss. But when the target is a fellow congressman - one under investigation for taking a bribe, no less - they're ready to rumble.

Witness the bipartisan frenzy set off after the FBI searched the Capitol Hill offices of Rep. William Jefferson, D-La., on Saturday. The FBI had a court order. According to an FBI affidavit, he was videotaped taking $100,000 in cash from an investor working undercover for the FBI. Agents found $90,000 of it stuffed in his freezer at home, the affidavit said.

Never mind all that. Leaders of the House of Representatives are appalled. They say the search violated the Constitution's separation of powers, "designed to protect the Congress and the American people from abuse of power."

House Speaker Dennis Hastert, R-Ill., and Minority Leader Nancy Pelosi, D-Calif., who rarely agree on anything, demanded that the Justice Department return the "unconstitutionally seized" documents. House Judiciary Committee Chairman James Sensenbrenner, R-Wis., said the episode raised "profoundly disturbing" questions. He set a hearing for Tuesday to ask: "Did the Saturday night raid of Congress trample the Constitution?"

If only those leaders were as profoundly disturbed about executive branch incursions on the rights of average citizens. You certainly have to wonder where they've been for the past several years while the Bush administration ran roughshod over the legislative branch and launched anti-terror programs of questionable legality.

Last December, The New York Times revealed that the National Security Agency (NSA) was wiretapping international phone calls without court warrants. Hastert didn't make a peep. Pelosi and other Democrats loudly protested, but nothing came of it. As it turns out, Pelosi was part of a tiny leadership group that had been briefed on the program since October 2001.

The scenario repeated itself this month when USA TODAY revealed that the NSA has collected millions of phone records.

So now the leadership swings into action because the FBI searched a Capitol Hill office for evidence of criminal activity?

This is not to belittle the separation of powers doctrine. It's meant to prevent a president from using investigations and unwarranted searches to intimidate lawmakers in their official duties. The Justice Department might have minimized the outcry by managing the search with more deference to congressional sensitivities. But there's no evidence that the Jefferson raid was an abuse of power.

A more appropriate response from congressional leaders would have been remorse over their failure to do anything meaningful to make members act ethically. Hastert, for instance, replaced a House ethics committee chairman last year after he attempted to enforce some rules. Congressional offices, obviously, should not be sanctuaries for crime, but the outcry from Capitol Hill brought quick action. On Thursday, President Bush ordered the documents seized in Jefferson's office to be "sealed" from the investigators' view for 45 days, while the Justice Department and Congress settle their differences.

What a pity that Congress' leaders haven't used their clout to protect the public's rights as eagerly as they defend their own.

http://news.yahoo.com/s/usatoday/200...A2BHNlYwM3NDI-

Jolie Rouge · 05-27-2006, 01:29 AM

Principle over politics
by Tim Chapman

Over the weekend FBI agents raided the Capitol Hill office of Rep. William Jefferson in search of documents connecting him to a federal bribery investigation. When
the search was over, agents left with some damning evidence, including nearly $100,000 in cash found in the Louisiana Democrat's freezer.

Republican partisans delighted in the delicious irony of yet another Democratic talking point falling flat on its face. Indeed, the culture of corruption charge that Harry Reid and Nancy Pelosi love to bandy about rang hollow as yet another of their own appeared to be going the way of Abramoff and Co.

But the partisan popping of the champagne corks in GOP operative land was short lived, as former Republican revolutionary and Speaker of the House Newt Gingrich threw a freezing cold bucket of ice water on the situation. On Tuesday the Hill newspaper reported that Gingrich fired off a missive to Capitol Hill Republicans condemning the raid as an unconstitutional breach of power. "What happened Saturday night... is the most blatant violation of the Constitutional Separation of Powers in my lifetime," Gingrich wrote. "As a former Speaker of the House, I am shaken by this abuse of power."

Soon thereafter, Congressional leadership followed suit.

Speaker Dennis Hastert and Senate Majority Leader Bill Frist expressed concerns about the constitutionality of the raid. The tried and true Separation of Powers doctrine is at stake, and clearly congressional leaders are sympathetic to Gingrich's sentiments. Hastert's top lieutenant, John Boehner, even went so far as to suggest that the matter would not be settled until the Supreme Court stepped in with a ruling.

In response to congressional leadership's concerns, right-leaning pundits everywhere are crying foul. Charges of political ineptitude and tone deafness are filling the conservative blogosphere and column pages. John Podhoretz, a contributor to National Review Online, sums up the feelings of many conservatives writing on a National Review group blog, "The Republican party has been reeling from bribery and corruption scandals of its own. So the Speaker of the House, the leader of Republicans in the House, actually complains to the president that the raid on the Democratic congressman's office is an unconstitutional violation of the separation of powers. In so doing, he reinforces the image that Congress, which almost never polices itself, cares less about corruption than it does about its prerogatives. It also steps on the very important political story that might help diffuse the image of specifically Republican corruption."

Podhoretz can't help but conclude that, "Denny Hastert is a blithering idiot."

Well, politically speaking, maybe. But aren't conservatives who are criticizing Hastert and others trying to have their cake and eat it too?

A common complaint of conservatives lately is that the GOP has lost its ability to stand on principle, politics be damned. Why haven't Republicans, on principle, objected to big spending government programs like the Medicare Prescription Drug Act or No Child Left Behind? Why can't Republicans, on principle, say no to anonymous earmarking that greases the skids for poorly crafted legislation? Why have House Republicans been able to muster so few votes for a budget modeled after the revolutionary 1995 budget that passed the House with all but one vote?

The answer is that the politics of the situation -- or so they think -- demands that they vote against the principled position.

Now, Republican leadership is taking a principled position on the FBI Jefferson raid at the expense of the politics of the situation. Indeed, this position is scoring zero political points for Republicans while at the same time letting Democrats off the hook. Pundits are right to be baffled at the politics of the situation, especially given the GOP's past track record of playing to the politically popular position.

It is worth examining the position that GOP leadership has taken. In 219 years the Executive branch has never infringed on the Legislative branch in this manner. This week's raid was a first. Now consider if the situation were reversed. Can you imagine what would have happened if House impeachment investigators had sent a team to President Clinton's White House to search for subpoenaed documents?

The FBI claims that it raided Jefferson's office with extraordinary safeguards in place. But did it? The historical practice of allowing a representative of the House such as the general counsel to observe the search was not honored. Quite to the contrary, in fact. The general counsel was not allowed in the room at the time of the search and was instead given assurances that the FBI would police itself in regards to privileged and unprivileged documents. Police itself?

Surely this was not what the Founders envisioned when they set up a system of Separation of Powers; a system designed to work off friction between the competing branches of government. To assume that one branch would police itself to the benefit of another branch is to assume that the Founders system is not needed.

Critics of congressional leadership certainly have a point regarding the politics of the situation: This is messy, and it appears silly. But critics should concede that a principled argument is being made here. Those critics are free to critique that argument, but they should recognize that those legislators who are making it are not in any way motivated by politics... for once.

This conservative would like to see Republicans stand for principle on a much broader range of issues. But hey, beggars can't be choosers.

There's a right way
By Dennis Hastert
Fri May 26, 7:21 AM ET

If the information we have read about the behavior of Rep. William Jefferson, D-La., seems as obvious to a jury as it does to he, he deserves to be vigorously prosecuted. I do not want to do anything that will interfere with that prosecution.

The issue that has concerned me, as Speaker, since Saturday night is not if the FBI should be able to search a member of Congress' office, but rather how to do it within the boundaries of the Constitution.

On Thursday, President Bush recognized that serious constitutional issues needed to be resolved. He wisely directed the Department of Justice to send the documents (taken from Jefferson's office last weekend) to the Solicitor General's office for safekeeping for 45 days. This was a meaningful step. The president also encouraged the Justice Department to meet with us.

Democratic Leader Nancy Pelosi and I directed the lawyers for the House to develop reasonable protocols and procedures that will make it possible for the FBI to go into congressional offices to constitutionally-execute a search warrant.

In more than 219 years, the Justice Department has never found it necessary to use a search warrant to obtain documents from a congressional office. These issues have always been resolved without the necessity of a search warrant, and prosecutions have gone forward.

Justice Department officials now insist that this specific case required them, for the first time, to conduct a search. I regret that when they reached this conclusion, they did not work with us to figure out a way to do it consistently with the Constitution. But that is behind us now. I am confident that in the next 45 days, the lawyers will figure out how to do it right.

Rep. Dennis Hastert, R-Ill., is speaker of the U.S. House of Representatives.

http://news.yahoo.com/s/usatoday/200...A2BHNlYwM3NDI-

Jolie Rouge · 05-30-2006, 03:02 PM

Jefferson's alleged misdeeds may strand Louisiana yet again
By DeWayne Wickham
Tue May 30, 6:44 AM ET

Days before the official start of this year's hurricane season, an ill wind hit New Orleans. Not another massive storm like the one that devastated the Big Easy nine months ago. This one was no act of Mother Nature. It was man-made.

And the man who made it, federal investigators contend, is Rep. William Jefferson (news, bio, voting record), the Democratic congressman whose New Orleans district was the epicenter of the destruction wrought by Hurricane Katrina last year.

Jefferson, Louisiana's most prominent black politician, is the target of a federal criminal investigation. Though he has yet to be charged with a crime, the FBI said in an affidavit used to get a warrant to search his office that the eight-term congressman engaged in widespread criminal conduct. The 83-page document accuses Jefferson, among other things, of fraud and attempting to bribe a foreign official.

The G-men claim to have secretly tape recorded and videotaped some of Jefferson's alleged bad acts.

As a member of the House of Representatives' powerful Ways and Means Committee, Jefferson is well positioned to help the mostly black residents of his congressional district, many of whom have been forced out of their homes - and out of New Orleans - by Katrina's floodwaters. But if the FBI's accusations are true, Jefferson spent a lot of time before and after the hurricane struck New Orleans trying to feather his own nest.

The FBI's account

In the affidavit, the FBI recounts how Jefferson was recorded negotiating an increased share of the expected profits of a company he was helping to establish in Nigeria and Ghana.

While scribbling several figures on a piece of paper during a dinner meeting on May 12, 2005, with the woman who controlled the firm, whom the FBI identified only as a "cooperating witness," Jefferson allegedly revealed his criminal intent.

"I make a deal for my children. It wouldn't be me," Jefferson said as he pushed the woman to give a larger share of her Nigerian business venture to Global Energy & Environmental Services, LLC, a firm owned by his children and run by a son-in-law.

All of this convinced a federal judge to give the FBI a warrant to search Jefferson's Capitol Hill office, an extraordinary action that has enraged both congressional Democrats and Republicans. The search, they say, tramples upon the separation of powers doctrine.

Last week, President Bush ordered the Justice Department to seal the documents seized from Jefferson's office for 45 days to give federal lawyers and lawmakers a chance to avoid a constitutional crisis.

Silence, for now

Jefferson has refused to discuss the facts surrounding his case. "There will be an appropriate time and forum when that can be explained and explicated," he said last week at a news conference.

But that's not good enough.

Jefferson is accused of using his elected office for criminal purposes. The FBI said they have videotape of him accepting a $100,000 bribe last July. They said they later found $90,000 of that money hidden in the freezer of his Washington apartment.

Then in September, five days after Katrina hit, Jefferson had the Louisiana National Guard take him through the flooded streets of New Orleans so he could recover some items from his home, which the FBI had searched earlier. Whether this had anything to do with his criminal investigation is unclear.

But this much is certain: Jefferson owes the voters of his district an explanation. And he should speak up before they go to the polls in November to fill the congressional seat he holds. If he chooses to remain silent, then he should quit the race.

The people of Louisiana, especially those in his district, are still reeling from the lingering effects of Katrina. What they need now is a tireless champion. What they have instead is Jefferson, whose effectiveness has been severely damaged by bad judgment and, possibly, criminal conduct.

DeWayne Wickham writes weekly for USA TODAY.

http://news.yahoo.com/s/usatoday/200...A2BHNlYwM3NDI-