Behind the curtain of Congressional complaints of searches of Congressional offices.

The recent FBI search of William Jefferson's (D, LA2.) Congressional office has brought forth loud complaints from the House Congressional leadership that the Executive Department (FBI) should not be allowed to search the offices of Congressmen because of the Constitutional separation of powers. Denny Hastert (R. WI. Speaker of the House) and Jim Sensenbrenner (R. WI. Chairman of the House Judiciary Committee) both complain that the Executive Department does not have the right to obstruct the functioning of Congress. (heard on NPR Morning Edition May 29) Roll Call reports that House Members are complaining that the Executive Department is treating them "like common criminals."

Interestingly, Sen. Bill Frist (Rep. Senate Majority Leader) was just quoted on NPR Morning Edition saying that no member of Congress is above the law.

My first response was that Hastert and Sensenbrenner had a good point. If the Executive Department has free rein to search every Congressman's office at their whim, this would be a power that could totally disrupt the functioning of the Congress. Jeralyn Merrit over at TalkLeft has looked into (and links to)

"a copy of the search warrant for Rep. Jefferson's (D-LA2, New Orleans) Congressional office as well as defense counsel's excellent memorandum for sealing the records pending litigation of speech and debate privilege and separation of powers. I'm impressed with both."

She also considers the White House out of control and dismissive of both Congress and arguments that Congress is Constitutionally an equal branch to the President. True though that may be, and as much as I distrust the FBI for historical reasons, the search of Congressman Jefferson's office does not appear at this time to be an example of it.

Josh Marshall makes the point that Congress hasn't been responding to Justice Department requests for information. (also TPM Muckraker) The real problem isn't that the Justice Department is trying to treat Congressmen as crooks. The real problem is that Congressmen like Randy Cunningham, William Jefferson, Bob Ney, Tom DeLay, and Jerry Lewis ARE crooks, and that the Congress is not performing its Constitutionally required duty "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." (Art I, Sect 5.)

This investigation and punishment function is what the House Ethics Committee was supposed to do. You remember the Ethics Committee, don't you? After it admonished then Majority Leader Tom DeLay 3 times for unethical behavior, DeLay removed several members of the committee and replaced them with people who blocked all action by the committee. The result was that there has since been no mechanism for the House to "punish its members for disorderly behavior." The House has said and done nothing as the Justice Department investigated Randy "Duke" Cunningham for bribery, convicted him, and sent him to prison for the longest prison term ever (so far) given to a Congressman for criminal actions performed in office.

You will notice that the statement in the constitution says may punish its members. That is permissive, but does not permit Congresspersons to break the law with impunity if the House does not punish them. And that's what (Tom DeLay's protoge) Denny Hastert is afraid of and is trying to head off. The Abramoff investigations are closing in on a lot of Congresspersons. Hastert and Sensenbrenner are throwing up roadblocks.

Because William Jefferson is a Democrat, Hastert and Sensenbrenner seem to have believed that they could make their attempt to be above the law into a bipartisan issue. As the comment above by Bill Frist shows, even the Republicans are one hundred percent behind Hastert and Sensembrenner.

Congress has the power of the purse - if the members work in unison. That's all they need to protect themselves from Executive Department efforts to disrupt their deliberations. They don't need any institutional agreement that places them above the law. Especially not now after six years and more of Congressional corruption. Democratic Congressman Barney Frank apparently agrees with me.