Raid on Congressman’s office questionable but not unconstitutional

Editorial

A number of present and former members of Congress, including such Republicans as current and former House speakers Dennis Hastert and Newt Gingrich, respectively, have criticized the FBI’s decision to search the congressional office of Rep. William Jefferson, the Louisiana Democrat being investigated for accepting bribes. The criticism is understandable but a bit overwrought.

Newt Gingrich called the Saturday night raid on the office of Rep. Jefferson, who stored in his home freezer $90,000 of what the FBI says was a $100,000 bribe given him by an undercover FBI informant, “the most blatant violation of the separation of powers in my lifetime.”

Republican Senate leader Bill Frist and Democratic House leader Nancy Pelosi offered similar criticisms.

The separation of powers in the U.S. Constitution is an important safeguard of liberty. It delegates to the three branches of government — and to state and national governments — separate grants of power and privilege with the hope that they all will serve as checks on one another. The founders knew the appetite for power is almost limitless in certain human beings and sought to institute effective and realistic checks on that appetite.

The framers were concerned about the possibility of the executive branch using criminal prosecutions to intimidate members of the legislative branch, so they made statements on the floors of the Legislature immune from prosecution and protected travel by legislators from arbitrary arrests.

These protections, however, do not and cannot extend to genuinely criminal acts by legislators, which, given human nature, will occur and have occurred. The fact that no executive branch has raided a congressional office before is not a constitutional or legal principle but a matter of comity. Comity is not to be despised, but it doesn’t always trump the need to investigate allegations of criminal wrongdoing.

All that said, Rep. Jefferson is entitled to the presumption of innocence, and it is certainly legitimate to question whether the raid on his congressional office was really necessary. It is also legitimate to be troubled that the FBI pulled a “sting” operation in which law enforcement uses deception to create a crime that might or might not have occurred otherwise.

But the raid does not constitute a constitutional crisis. The separation of powers is and probably always will be in tension with the proclivity of people with power to want to consolidate it. But going after an allegedly crooked congressman, even in an unprecedented fashion, does not seriously threaten the principle.