I think congressional leaders are absolutely goofy to complain about the FBI search of Rep. William Jefferson’s office. To be clear, I am generally a legislative supremacist: The Founders clearly saw Congress as a sort of “first among equals” of the three branches of the national government, as the late great Willmoore Kendall and George Carey made perfectly clear in their classic, “The Basic Symbols of the American Political Tradition.” Nevertheless, Madisonian that I am, I argue strongly that there is NO separation of powers issue involved in the search of a congressman’s office pursuant to a legally issued search warrant. Government property is not immune to searches for evidence of criminal wrongdoing. And why would it be? It belongs to us, the people of the United States, not to Congress itself. To quote from Madison in Federalist 47, he wrote that when Montesquieu wrote of separating the three major departments of government, “he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” And in Federalist 48: “Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained…. None of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.” He then goes on to say that there is a particular danger in having the Legislature amass too much independence from or indifference to the other two branches. In Federalist 57 Madison notes that the House “can make no law which will not have its full operation on themselves and their friends,a s well as on the great mass of the society” — and that presumably includes the laws governing search warrants.
And so on.
So here we have the same Congress that, even after the stench of scandal, STILL refuses to pass laws that disallow lobbyists from wining and dining them (in obvious return for special access, at the very least), yet wants to consider itself immune from a search warrent ordered by a judge (the third branch of government) and carried out by the FBI (representing the executive, the second branch of government) under laws governing search warrants, pursuant to the COnsitution, passed by Congress itself.
Give me a break. Hastert, Dreier, and Frist should worry about other things than whether Bill Jefferson’s office is somehow immune from a legal search.
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