La Follette, Taft, Gruening, and . . . William Jefferson
During World War I, Robert La Follete risked his career to stand up for congressional prerogatives--first in the run-up to World War I, where he challenged Woodrow Wilson's authority to wage an undeclared war; then during the war, when he upheld the authority of senators to speak on issues of the day against threats to expel him from the upper chamber for his continued dissent. In the late 1940s and early 1950s, Robert Taft fought a courageous if unsuccessful battle against Harry Truman's efforts to consolidate the warmaking and treatymaking powers in the executive branch. During the 1960s, Ernest Gruening articulated a case for a robust congressional role in government based on the innovative use of procedure, intellectual forcefulness, and the appropriations power.
In recent years, those of us concerned with the erosion of congressional power have been looking for an intellectual leader in the legislature. Robert Byrd is the figure most frequently cast in this role--but the West Virginia senator is in many ways a poor choice: during the Vietnam War, Nixon officials referred to him as a"king's man," and he repeatedly sponsored amendments to weaken Congress' role in international affairs.
There is no longer any reason to despair: a brave new voice has emerged from the halls of Congress to champion the protection of legislative prerogatives vis-a-vis the executive. He is New Orleans congressman William Jefferson. Sure, some might know Jefferson for his unflattering recent news--such as attempting to enter New Orleans right after Katrina to remove unspecified material from his district office, being caught on an FBI videotape accepting a $100,000 bribe (in marked bills, while joking with a partner about"all these damn notes we're writing to each other as if . . . the FBI is watching"), then seeing law enforcement officials finding $90,000 of this money in his freezer (helpfully stored in aluminum foil), and apparently becoming the first sitting member of Congress to have his House office raided.
But in his press conference yesterday, Jefferson also revealed himself to be a theorist of congressional power. The search of his office, he declared,"represents an outrageous intrusion into separation of powers between the executive branch and the congressional branch, and no one has seen this in all the time of the life of the Congress."
Indeed, the congressman continued,"there's no real authority for it." Not only have his lawyers"expressed outrage" at this blatant violation of the separation of powers,"all of those who consider themselves scholars in the matter have also done so." Jefferson didn't reveal how he ascertained the opinions of"all of those who consider themselves scholars"; perhaps he did so between trips to his freezer. We haven't seen such a stirring defense of congressional prerogatives since former Philadelphia congressman Ozzie Myers performed on videotape during the Abscam scandal. Scholars can expect, undoubtedly, to continue to hear Jefferson expand on his theory of congressional power. Perhaps the federal government will consider Jefferson's thinking to be of such importance that it provides him with a federally-funded guarded residence--for, say, the next 8-10 years.
In all seriousness, there is something of a constitutional issue here--Newt Gingrich, among others, has claimed that the raid violated the Speech or Debate Clause, which provides immunity to Members and staff from all actions “within the legislative sphere." According to Doe v. McMillan,"The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.” That said, it's hard to see how Jefferson's conduct can be considered covered under this clause--if carried to its logical extension, this new"Jeffersonian" theory of congressional power would suggest that congressmen should be free to engage in corruption, provided they simply hid all of the incriminating documents in their House or Senate offices.
Politically, the Democrats have badly mishandled this case. Nancy Pelosi should have publicly demanded that Jefferson resign. As things stand now, the Louisiana congressman is the GOP's best friend in the House.
Robert KC Johnson - 5/24/2006
A mystery solved as to why Hastert was so outspoken in favor of Jefferson's rights?
Oscar Chamberlain - 5/24/2006
Good point about the ethics committee. To the extent that Congress does not police itself, it leaves itself open to being policed more by others.
Robert KC Johnson - 5/23/2006
Oscar's right that the president is protected from criminal investigation while in office--but this is directly established in the Constitution, with the impeachment clause. There's no such prohibition regarding Congress.
In this case, from what we know, some of the illegal activity was conducted in the office itself. If this turns out to be a gratuitous raid, I think Jefferson would have grounds for complaint. But it certainly sounds as if the FBI had a legitimate reason for going in.
Hastert complaining about the raid was priceless--he'd have just a tad more credibility on such matters if he hadn't spent his entire Speakership trying to gut the Ethics Committee.
Oscar Chamberlain - 5/23/2006
Thanks for the ceremonial correction!
Alan Allport - 5/23/2006
Also consider British ceremony. When the Queen goes to Parliament to speak, one of her minions knocks and waits until the door is opened from the inside. Only then is she allowed to enter.
Not quite - the Queen never enters the House of Commons; the last monarch to do so was Charles I, and look what happened to him. It's Black Rod (don't ask) who summons the Members of the Commons to the Lords to hear the Queen's bidding ('the Queen's Speech', actually written by the Prime Minister) at the opening of a new Parliament; the door is slammed in Black Rod's face as he approaches, to signify the lower chamber's traditional defiance of the Crown.
Oscar Chamberlain - 5/23/2006
Newt's interpretation is not as farfetched as it sounds. The president is protected from prosecution while president, and how would a legislative investigation that bugged the White House (or even the Department of Justice) go over?
Also consider British ceremony. When the Queen goes to Parliament to speak, one of her minions knocks and waits until the door is opened from the inside. Only then is she allowed to enter. The United States inherited, and indeed strengthened in the Constituiton, the separation that ceremony symbolizes.
This doesn't make Jefferson innocent. Given the preponderance of the evidence, Pelosi would be better off to renounce him, but a bit like Kenneth Starr's excesses against a guilty Clinton, even if Jefferson is guilty, this part of what was done to him was wrong.
Jonathan Dresner - 5/23/2006
Newt Gingrich, among others, has claimed that the raid violated the Speech or Debate Clause, which provides immunity to Members and staff from all actions “within the legislative sphere."
Interpreted thus, it would make members of Congress functionally untouchable by law enforcement, an aristocracy governed by no particular law except custom and ambition....
Powerless, of course, with the new imperial presidency, but comfortable.