Congress Crying Wolf On Separation of Powers Flap

May 25, 2006

For a long time, Democrats have been picking on President Bush — “King George” — for “consolidating executive authority” and usurping legislative authority, not to mention tons of other things. But he does himself no favors by ordering that documents seized from Representative William Jefferson’s office be sealed for 45 days.

Jefferson is the subject of a federal investigation into whether he accepted a bribe from two people — who have already entered guilty pleas — to promote a high-tech business venture. Authorities say they have a videotape of Jefferson receiving a $100,000 bribe and that they found $90,000 in cash in a freezer at his Washington D.C. apartment.

Last Saturday night, the FBI, with a duly executed search warrant in hand, entered and searched Jefferson’s Capitol Hill office and seized a number of his documents. Members of both parties of Congress expressed outrage at what they claim is an egregious violation of the separation of powers doctrine.

The FBI, of course, is part of the executive branch. The congressmen’s objection is that for an agency of the executive branch to raid the office of a member of the legislative branch, constitutes a dangerous executive encroachment on the legislature. They say this is the first search of a congressman’s Capitol office in the more than two centuries since the first Congress convened.

House Speaker Dennis Hastert and House Minority Leader Nancy Pelosi issued a nearly unprecedented joint statement condemning the FBI raid and demanding that the FBI return the documents.

With all due respect, these claims are preposterous, and I don’t believe President Bush should have intervened, even if just to provide a cooling-off period. There are principles worth vindicating here, and compromise for the sake of short-term harmony can sometimes damage those principles.

While congressmen can loftily assert that the separation of powers principle is at play here, I disagree. To argue that the separation of powers doctrine grants immunity from official search and seizure to members of the legislative branch is a slap in the face to another lofty and indispensable concept: the rule of law.

The Constitution establishes a government of laws, not men; and no men, including government officials, are above the law. While legislators are bellyaching about the excessive authority of the executive branch, they are, in essence, arguing for excessive authority and privilege for members of their branch. We have no kings. We have no royalty among legislators. If they are suspected of violating the law, the executive branch has an obligation to investigate and to employ its full powers in doing so — including that of reasonable searches of their offices and seizures of their relevant effects.

The separation of powers doctrine delineates governmental functions and distributes them among three branches. But these branches do not have coequal power over all functions — such as law enforcement, which is the prerogative of the executive branch. It pits the branches against each other through a checks and balances scheme designed to prevent any branch from becoming too powerful at the expense of our liberties.

To argue that individual congressmen are not subject to search and seizure by agencies of the executive branch because that would give the executive branch undue power is preposterous. Who else is supposed to conduct such searches? The judiciary, by the way, was involved here, as well, in approving the warrant. Are law enforcement authorities supposed to give advance warning to suspected criminal congressmen to allow them to cover their tracks? This is too ridiculous for words.

When congressmen speciously invoke the separation of powers doctrine to shield their own members from law enforcement, they do damage to the doctrine by diluting and misapplying it. And through their arrogance in attempting to elevate themselves above the reach of law, they make a mockery of the lofty principles they purport to serve.

The separation of powers does not create a firewall between the branches. They interact all the time. Remember the Supreme Court ordering President Nixon to turn over the tapes? And Congress, if it so chooses, can restrict the jurisdiction of federal appellate courts. To suggest that every time one branch takes action that affects another branch violates the separation of powers principle is an insult to that principle.

These congressmen need to remember that they are the representatives of the people, not our privileged masters. It is disappointing that, in this case, otherwise good men are sending a contrary message.