Another question: over the course of the week I was away, quite a number of people appear to have accepted it as a given that at a minimum grave constitutional issues were raised by the Justice Department executing a search warrant to search a congressional office.
But why exactly?
It’s really not clear to me that there’s any constitutional issue raised at all.
Many parliamentary democracies have laws that grant legal immunity to lawmakers — the generous rationale being that the government could abuse its law enforcement powers to intimidate or punish the parliament. But US lawmakers have never enjoyed such an immunity.
If the Feds can raid a congressman’s house, it’s not clear to me why they can’t raid his office. Sure, there’s some room for prudential restraint and a respect for comity. But if the DOJ can’t search a congressman’s office, then the power to investigate and prosecute close to falls apart since that creates a safe harbor for incriminating information. Any serious claim that the functioning of Congress falls outside the bounds of the DOJ would apply to acts as well as work product. And that means that any bribery prosecution is impossible since official acts are an element of the crime.
The constitutional peg for all this speculation comes in Article I, Section 6, which states that Senators and Reps …
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.
A textual and historical analysis points to a clear meaning and intent behind this passage. The executive is not permitted to arrest or imprison members of Congress to manipulate or prevent Congress from functioning. President Bush can’t put Sen. Feingold in the slammer to shut him up. They also can’t held to account for what things they saw on the floor. But the text clearly spells out the exception of serious crimes, i.e., “felonies.”
All this analysis aside, the real issue is what’s coming down the pike. There are probably a dozen or more members of Congress under federal criminal investigation of one sort of another. (Rep. Duncan Hunter (R-CA), who a lot of have long suspected was tied up in Duke’s wrongdoing, is apparently the latest.) And most all of them are Republicans. Denny Hastert says that he wants “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.” I’m sure he does. But he shouldn’t be able to use bogus constitutional arguments to keep covering for the corrupt practices which have blossomed on his watch.
