Wednesday, May 24, 2006

Cold cash ... it's what's for dinner

The brewing scandal over the FBI search of U.S. Rep. William Jefferson's Capitol Hill office is stultifying on a few levels. In case you haven't been watching: Jefferson is suspected of taking bribes.

First, the FBI found some $90,000 in the Louisiana congressman's freezer. This is incriminating. But there are two explanations: He was hiding the money or it was his. (OK, maybe he was holding it as evidence in his own investigation into congressional corruption and planned to turn over to the FBI.) But if Jefferson is innocent ... do we really want a congressman who thinks wise money-management is shrink-wrapped cash in the Frigidaire? No wonder we're in such a national economic mess.

Second, Congress' leadership is now whining that congressional offices should be (and have historically been) free from legal searches. It's how we keep the Executive and Legislative branches separate, they say.

Well, I disagree. Why should they be free from legal searches? If a congress-person is breaking the law, he shouldn't have any safe harbor, especially not a taxpayer-supported hideout on Capitol Hill. And if we can expose a president who gets, um, oral pleasure in the Oval Office, I certainly think we can look in a congressman's freezer (and why did he have a freezer in his office anyway?)

Congress had no difficulty creating or endorsing invasive new incursions on our civil liberties, from airport searches that seize our fingernail clippers to monitoring whom we call on our private telephones. For them to express their discomfort with being subject to the laws (and lawmen) of this country is disingenuous.

We might be heading into a new era of government mistrust if our leaders see themselves as having privileges that ordinary Americans don't have.


Michael Gillespie said...

The Separation of powers doctrine is arguably as important to our Constitutional democracy as the Bill of Rights and due process, Ron. On the separation of powers doctrine rests the checks and balances that prevent any one branch of government from becoming inordinately powerful and running roughshod over the other two branches and the rights of American citizens. The most likely offender in this regard is, and always has been, the Executive branch.

Does the phrase "Watergate Scandal" ring a bell somewhere in the distant recesses of memory? The checks and balances that came into play when Richard Nixon decided and announced to the nation that, "If the president does it, it's not against the law," were resident in the legislative branch. If the separation of powers doctrine becomes so degraded as to allow the President to order his Attorney General to order the Director of the FBI (all members of the executive branch) to raid Congressional offices or Judicial offices in order to prevent the legislature or the judiciary from functioning, as the Founding Fathers intended, as checks against executive excesses and criminality, who is to remind the President that he is, in fact, a president, rather than a king who can say, "The law is whatever I say it is," and have his edicts enforced by police and military power?

Democratic leaders govern with the consent of their citizens. If our elected representatives cannot be secure in their offices, protected against the excesses and crimes of a rum amok chief executive and his minions, arguably, the United States of America are no longer a Constitutional democracy The problem we have today is that the Richard Nixon of Watergate fame, who sent his minions into the offices of the opposition party under cover of darkness in a covert political espionage operation, was a flaming liberal compared to our current president and vice president. Moreover, even if Louisana Congressman William Jefferson is as guilty as homemade sin, something that has yet to be proved and may well not be proven, the charges against Jefferson, which he has categorically denied, suggest that he is guilty only of venality, taking bribes to help a Virginia company install internet and phone lines in Africa. That's bad enough, but it is hardly in the same category as the crimes with which California Republican Congressman Randy "Duke" Cunningham was convicted, taking bribes from defense contractors. That kind of venality seriously undermines the national security. The still expanding Cunningham investigation, which now involves defense contractors, prostitutes, Congressmen, and, perhaps CIA officials including the recently resigned Bush appointee Porter Goss and his number three at CIA, Kyle "Dusty" Foggo, in sex and poker parties at the Watergate Hotel of all places, has been removed from the front pages by stories about the investigation of Congressman Jefferson. How convenient! There exists the real possibility that the raid on Jefferson's Congressional office was designed primarily to change the topic of conversation in official Washington. One thing about which there is no doubt whatsoever: At this point, the Bushies are desperate enough to do just about anything, and yet another grab for power by the executive branch comes as no surprise.

Ron Franscell said...

Let's not forget a federal judge OK'd the search warrants, so every branch of government is balled up in this.

Luckily, Nixon got what was coming to him, separation of powers or not, impeachment or not. He certainly didn't get off the hook because his office was uninvestigatable.

Maybe there's a good novel in this: Imagine an organized-crime boss buys himself an election. let's say he keeps up the minimal responsibilities of his job as a congressman, but otherwise, he just runs his mob business from his Capitol Hill office. Should he be immune from legal searches?

I am always confused by the anti-Bush stuff (and I'm no fan of W, believe me.) On one hand, the Left argues he's the dumbest boob to come down the political pike since -- well, the's the dumbest, period. Then they suggest a lot of very complex conspiracies that he has supposedly concocted to maintain his approval rating at, what, 30%? Did W also arrange for Cynthia McKinney to slug a cop? Frankly, W doesn't seem in control of enough things to manage these intricate media-management conspiracies.

William Jefferson is innocent, as we speak. A trial might later prove him otherwise, but I'm comfortable with his innocence for the moment. (And his party affiliation, like Duke Cunningham's, makes no difference to me.) Nonetheless, keeping cash in a freezer suggests legal ignorance (at best) and dopey criminality (at worst).

Michael Gillespie said...

I don't believe that Bush is stupid, but rather that he has deeply-held religious beliefs that can fairly be described as being of the "crusader" type, and that he and his vice president, many of their political appointees, and their colleagues in Congress have on many occasions put self-interest before the legitimate interests of the American people. With control of the executive branch and the House and the Senate, the Republican Party has too much power, and the abuses of that power and the results of those abuses are now glaringly evident in an increasingly unpopular and unsuccessful foreign war and a huge national deficit--the largest ever. The president's dismal poll numbers reflect public dissatisfaction with the Bush administraion's and the Republican Party's excesses.

I'm not at all clear on what you mean when you refer to "very complex conspiracies" and "intricate media management conspiracies". But I do know that conspiracies are not so uncommon as those who habitually sneer at "conspiracy theorists" would have their readers believe. If conspiracies were not as common as, well, criminal activity, for instance, there would be no need for laws such as the Racketeer Influenced and Corrupt Organization Act (RICO), which was passed by Congress with the declared purpose of seeking to eradicate organized crime in the United States. According to the DoJ's Criminal Resource Manual, "The RICO statute expressly states that it is unlawful for any person to conspire to violate any of the subsections of 18 U.S.C.A. § 1962. The government need not prove that the defendant agreed with every other conspirator, knew all of the other conspirators, or had full knowledge of all the details of the conspiracy. Delano, 825 F. Supp. at 542. All that must be shown is: (1) that the defendant agreed to commit the substantive racketeering offense through agreeing to participate in two racketeering acts; (2) that he knew the general status of the conspiracy; and (3) that he knew the conspiracy extended beyond his individual role. United States v. Rastelli, 870 F. 2d 822, 828 (2d Cir.), cert. denied, 493 U.S. 982, 110 S. Ct. 515, 107 L. Ed. 2d 516 (1989)."

Quite apparently, conspiracies happen all the time. They are everyday occurrences. And often people participate in conspiracies without fully understanding either the larger enterprise or their own role in it.

SingingSkies said...

Perhaps the guy simply wanted to freeze his assets? Sorry, couldn't resist.

I think that establishing congressional offices as a search-free zone is the height of hypocrisy, and dangerous precedent. In theory (but all too often not in practice), we operate with an understanding that we are equal under the law. That means that our highest ranking officials should be given the same treatment that Joe and Jane Schmo whose home is a cardboard shelter get when a legal search warrant has been issued. To cavil that federally elected officials should be exempt shows that said officials don't understand the expectations they placed on us AND THEMSELVES when they approved the laws to allow more invasion of privacy.

As to the potential of dangerous precedent, I'd like to take Ron's story line and run it a step further. What if a deep cover member of a terrorist cell worked his/her way into the employ of a member of the congressional leadership and gained access to information which enabled that cell to pull off another 9/11 type attack? Would you then want that congressperson's office to be legally exempt from an FBI search?

As you say, Ron, there are several levels where this is a crippling situation.

Michael, I have a difficult time discerning a distinction between the levels of venality between Jefferson (if proven guilty) and Cunningham. By accepting bribes, both have broken their integrity and the trust the electorate put in them by electing them to office. When elected, they both swore an oath that their decision-making would be on the basis of what is best for the people of the United States, not on what would be best for the highest bidder and, thus, themselves. For me, each should be equally and visibly given the same treatment.

Michael Gillespie said...

The separation of powers doctrine is not about equality between the nation's citizens and their elected lawmakers; nor is it about equality between citizens and their elected lawmakers who become lawbreakers while in office. Rather, the separation of powers doctrine protects the functional relationship between the three branches of our government, a constitutional democracy. The sepration of powers doctrine prevents any one branch (the executive branch is typically the worst offender) from arrogating inordinate power unto itself (and establishing a dictatorship or a monarchy in the place of constitutional democracy). The separation of powers doctrine protects our elected representatives' ability to carry out the duties we elect them to perform for us; it protects their function against encroachment that could lead directly to the downfall of constitutional government. That is why we now see the leadership of both parties in both houses of the legislature alarmed by and questioning the unprecedented FBI raid on Rep. Jefferson's office.

The Republican leadership of a Republican-controlled House of Representatives and the Republican leadership of a Republican-controlled Senate have pointedly questioned the raid. Former House leader Newt Gingrich has publicly characterized the raid as "the most blatant violation of the Constitutional Separation of Powers in my lifetime" and called on President Bush to discipline or fire those responsible for it.

Having visited our nation's capital on several occasions, walked the halls of Congressional office buildings, and visited with members of Congress and with Congressional staffers, I can tell you that any citizen has the right to walk into the office of any member of Congress, request a meeting with the member, and talk with a staffer or staffers if the member of Congress is unavailable. I have found the members of Congress whose offices I have visited, even unannounced and without appointment, to be pleased at the opportunity to visit with me when I chanced to arrive at a convenient moment, even though in many cases I was not a constituent. I suspect that most Americans who view members of Congress as aloof and disinterested in the views of their constituents have never actually sought to engage their representatives in conversation or correspondence about the issues of the day.

Regarding the matter of the relative seriousness of criminal activity that in one case undermines the national defense and in another case does not, I wholeheartedly agree that the cases should be investigated and if necessary prosecuted with fair and equal attention to the law. The question is why the investigation of one alleged crime, bribery, that apparently involved no threat to national security would necessarily entail an unprecedented FBI raid on the office of a member of Congress, while concurrent corruption investigations with far more serious consequences that clearly impinge directly on the nation's security have not entailed the search of Congressional offices by the FBI. It may be that the FBI's case against Rep. Jefferson was perceived to be so weak, the video taped transaction of alleged bribe taking so inconclusive, that something more was required, hence the Satruday night raid on Rep. Jefferson's office in search of more damning evidence. Yet in other investigations involving members of Congress, and there have been many over the years, never before has the Justice Department found it necessary to search a Congressional office, even in cases where national security was an issue. Just what, exactly, made the investigation of Rep. Jefferson's alleged bribery so special, so important, that it occasioned the Justice Department's breaking a precedent of 219 years standing? My guess would be that politics, rather than the better judgment of FBI administrators, prevailed in the matter of the Saturday night raid on the separation of powers doctrine.

Michael Gillespie said...

For more on conspiracies and just how common they actually are, see the Houston Chronicle's main story about the verdict in the 16-week trial of Enron big shots Ken Lay and Jeff Skilling Apparently most of the government's witnesses testified that Lay and Skilling were involved in a conspiracy to defraud stock holders.

About these questions: "What if a deep cover member of a terrorist cell worked his/her way into the employ of a member of the congressional leadership and gained access to information which enabled that cell to pull off another 9/11 type attack? Would you then want that congressperson's office to be legally exempt from an FBI search?" There are some who make a fairly stong argument that the scenario above or something too like it has already happened. And, no, even in such a case I would not support the elimination of the separation of powers doctrine.

Our government and its long-term stability seem to be far more vulnerable to self-inflicted harm than to attack from outside our borders. No one forced our elected officials to go on a spending spree unlike any the world has ever seen and create the largest national debt in history. No one forced our president to take the country into an ill-conceived foreign war under false pretenses, to opt out of the Geneva Conventions, to authorize the military to spy on American citizens engaged in protected First Amendment activities, or to use a natural disaster as an excuse to enrich corporate interests at the expense of the citizens of New Orleans and the adjacent Gulf Coast while effectively changing the ethnic make-up a major U.S. city that has consistently voted Democratic.

Ron Franscell said...

Well, it's not a black-and-white issue, at any rate. From the LATimes today:

But several legal scholars said the law did not afford blanket protection to members suspected of criminal wrongdoing.

"The legal right of the government to do this is pretty easy," said Viet Dinh, a Georgetown University law professor who was a senior Justice Department official from 2001 to 2003. "It is only a matter of a judgment: Do you really want this evidence enough to take the political heat that will come down on you when you take such an unprecedented step?"

Georgetown law professor Mark Tushnet also said he did not see a constitutional problem with the search.

"If they can prosecute you for something without violating the speech-and-debate clause, they can use the ordinary methods for gathering evidence of the crime, including searches of your office," he said.

Michael Gillespie said...

Well, the discussion has been interesting, and I thank you, Ron, and Singing Skies, for challenging me to make as strong an argument as possible.

We can agree on at least two elements of the argument, I think. First, the dispute about the unprecedented raid on Rep. Jefferson's office, an offence against the separation of powers doctrine, is not one that opponents of the raid can hope to win by pointing to what the lawyers call black-letter law. There is no explicitly stated legal protection of Congressional offices against warranted search. (But there is the matter of precedent, 219 years of precedent. And, perhaps more important, there are 435 members of the House of Representatives and 100 members of the Senate, few of whom take kindly to the idea of FBI agents rummaging through their files for any reason, while there is only one President, whose poll numbers are in the dumpster, only one Attorney General, and both men bring to this latest dispute well-earned reputations for zealotry in pursuit of ever more presidential power.)

Second, any member of Congress who stores in his home freezer $90,000 in cash that he's just received while being videotaped as a subject in an FBI bribery investigation has some serious 'splainin to do. ;-)

Best wishes,