It’s very important to learn from your opponents. One thing I’ve learned from Karl Rove and his buddies is that if people don’t believe what you’re saying, you should say it often, until you’ve worn them down. (I believe that’s called “message discipline.”) So let me repeat my argument that the Jefferson raid was bad karma, and see if I can sharpen it up this time.
1. It’s very important for crooked Congressmen and Senators to be expelled and go to prison. More is better.
2. The Constitution gives them no immunity from prosecution, nor are their offices Constitutionally exempt from search.
3. The FBI has a long history of abusing its powers for its own organizational ends and to serve the political purposes of its Directors. (Does the name “J. Edgar Hoover” ring a bell?)
4. In terms of its personnel, the FBI is and will almost certainly remain strongly conservative (both culturally and politically) and Republican.
5. It’s easy to get a search warrant. It’s an ex parte motion, and judge-shopping is allowed. A warrant application doesn’t even require a prosecutor’s signature.
6. It’s especially easy to get a search warrant in a “national security” case, such as a leak investigation.
7. A search is a very reliable reputation-ruiner.
8. Allowing the FBI to search Congressional offices whenever it can persuade a judge to sign a warrant therefore gives the FBI too much abusable power.
9. The FBI just demonstrated why it shouldn’t be trusted with that power. The day after Dennis Hastert complained about the raid on William Jefferson’s office, “senior U.S. law enforcement officials” told ABC News that Hastert was under criminal investigation in connection with the Abramoff scandal. The Justice Department has now denied that; I’m agnostic. The DoJ release may be accuratge under a weaselly definition of “under investigation.” (Hastert may be in the investigators’ sights while still a “person of interest” rather than a “subject” or a “target.”) But the leak almost certainly came from the Bureau, and the only way to read it is as punishment of Hastert and deterrence for others.
10. The alternative to allowing the Bureau to search Congressional offices is a set of strong Congressional rules mandating prompt compliance with subpoenas, unless the Member under subpoena gets a floor vote supporting his or her resistance.
11. The alternative to having long criminal investigations of sitting Members is to give the Ethics Committees powers and investigative staffs that will allow them to do their own fact-finding, and change both the rules so that expulsion motions can be brought to the floor by the vote of either party. That won’t do any good unless the Democrats break the “ethics truce” and start to go after Republican corruption. Once a Member has been expelled, the criminal process can take its own course and its own time. Of course a Member whose actions might have violated criminal law has the right not to testify in an ethics hearing, but his or her colleagues have the right to make the natural inference from that silence. Explusion doesn’t, and shouldn’t, require proof beyond reasonable doubt.
So I fully agree that Hastert and Pelosi look silly, or worse, in criticizing the FBI for doing the job they and their colleagues have refused to do, and indeed have helped to obstruct. But the right solution is not to applaud the Bureau for its power grab, but to insist that the Congress start to do the right thing. If the current leadership won’t do so, the Democrats, at least, ought to find themselves new leadership, pronto.
Berman for Minority Leader, anyone? I bet he’d have another title after January 2.
Update: Just to clarify:
There are two different claims that might be made here:
1. “In some imaginary world, Congress might do the right thing, so the FBI ought to act as if it already had and refrain from raiding Congressmen’s offices even when the Congressmen are resisting subpoenas.”
2. “In a world in which the Congress does not do the right thing, the FBI can’t be prevented from grabbing excessive power. That makes it essential that the Democrats break the ethics truce and fight for the princple that Congress both requires its members to comply with investigative procedures and boots out its own crooks without waiting for the Justice Department to raid their offices.”
I’m arguing for #2. Several commenters, both here and on Political Animal, are arguing against #1, by saying that it would be wrong to exempt Congressmen from criminal investigation. It’s not clear that we actually disagree.
My objection is not to the Jefferson raid, but to the precedent it will set unless the Congress cleans up its own act.