Against the FBI power grab

Allowing the FBI to search Congressional offices whenever it can persuade a judge to sign a warrant gives the FBI too much abusable power. The Hastert leak indicates that the Bureau will in fact abuse such power.

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.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

27 thoughts on “Against the FBI power grab”

  1. "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."
    Fine. I assume this is not the policy now. So …

  2. I don't think anyone really disagrees with MK here … some such as Digby actually raised concerns. They are perfectly fine with Congress watching their own.
    Pelosi pressed Rep. Jefferson to step down from his committee seat, something others note DeLay etc. wasn't force to do at this point of time in the investigation.
    Both pressed him to work with the investigators, but he claimed 5A immunity … his rejection of the subpeona led to the search (which ScotusBlog notes had safeguards to deal with special concerns of this case) in the first place.
    But, yes, change the rules. OTOH, people are wondering why now congressional institutional concerns are being pressed as compared to any number of issues. Also, people agree this is a problem, but somewhat down on the list given who is involved. This includes Hasert being targeted.
    So, I think a certain false contrast is being made here though TalkLeft did write a post suggesting nothing wrong was done here.

  3. Without denying the seriousness of the separation-of-powers issues this whole affair raises, I think that Mark Kleiman is not quite warranted in concluding that "the only way to read [the leak] is as punishment of Hastert and deterrence for others."
    An alternative reading would be that someone "highly placed" at the Bureau:
    a) surmised that Hastert's jumping to Jefferson's defense was motivated by Hastert's knowledge that he is a "person of interest" in the investigation (he could know this by knowing what Abramoff has to tell about him); and
    b) perceived Hastert's action as a warning shot across the FBI's bow, to the effect that he (Hastert) is prepared to escalate matters to the Constitutional crisis level in order to save his skin; and finally,
    c) wanted publicly to return fire, in effect giving notice that if that is the way Hastert wants to play it, then the Bureau is prepared to oblige him.

  4. This all sounds nice if you live in a fantasy world, but the idea that Congress would really police itself that closely is just that — a fantasy world.
    If we follow Mark to the letter, and take on trust that Congress really would police itself, what's to stop a Congressman from running a call girl ring or a drug ring? After all, we know that many Congressmen broke Prohibition.

  5. Amelioj:
    Your interpretation is plausible. But is it OK for a law enforcement agency to conduct political warfare against the legislature? I don't think so.

  6. But is it OK for a law enforcement agency to conduct political warfare against the legislature? I don't think so.
    Posted by: Mark Kleiman at May 26, 2006 12:49 AM
    Well, its OK in the Valerie Plame case for the CIA to conduct political warfare against the executive!
    Even if the FBI don't have search warrants, they can try to leak someone to political death (like that radio guy on prescription drugs)…so who cares about the actual prosecution.
    If someone wanted to commit political destruction, he would have put the video of the payoff up on YouTube.
    I think the anonymous leak is the problem here. Arrest the journalist for obstruction of justice.

  7. Raw Story has a story about the FBI wanting to meet with top Congressmen about the NSA link. By now the Bush administration and and its winger supporters are hostile to Congress as such, insofar as it tries to interfere with the unitary executive. And the media as such too.

  8. FBI power grab?
    This is just a continuation of the Bush power grab and a very dangerous trend for the U.S.
    The whole corrupt politicians issue just plays into Bush's hands as he can intimidate Congress even more with the threat of investigations or worse.
    And the worse can be a lot worse given the erosion of rights of all citizens.

  9. Yes, it is problematic for the FBI to search a member of Congress office. It is even more problematic to provide allow a member to have an office where no law applies.
    The normal approach for gaining investigatory information from sitting members of Congress is via subpoena. Jeffereson ignored said subpoenas for nine months. Is Jefferson above the law?
    For that matter, when can a member's office be searched? Can the police have a video of a member committing a murder, where he/she keeps the body in a freezer in his office, and be free of recovery of the body? That doesn't seem reasonable.
    What is the threshold for search then? Hard evidence of the commission of a felony (like a video tape and supporting cash in a freezer), followed by complete refusal to cooperate for nine months with the legal process which has been the accepted procedure to resolve type of issue? It seems to be an abundance of caution on the part of the FBI.

  10. Don't coups d'etat frequently happen when the citizens look down on the constitutional government (because of a lost war, economic crisis, whatever) and the military trades on its reputation as a more trustworthy institution to seize power?

  11. Neither Kleiman nor I is objecting to the search. We are talking about the precedent. Considering who the President is right now, the question "What if this power ends up in the wrong hands" is not a hypothetical one.
    If Bush sees a chance to weaken Congress, he will take it. Right now he's got one.

  12. Wake up! Why do you think the Senate more than anyone else had a fit about wiretapping?
    President Bush is the top of the erosion going on the Hill. But 62 Senators are following in his footsteps. The United States is in far more danger from our President and 62 Senators than any foreign threat to our Nation. And Unless Legal American Citizens wake up and soon; this Nation is headed for a fast decline into being a 3rd world country.
    People don't read or think. People don't check out the person they are voting into office- they just vote strictly party or cause so and so is a good ole boy! BS.
    Its time to wake this Nation up and give the People an Eye-opener before its way to late to undo all the corrupt dealings on the Hill.
    I would like to see the FBI Investigate Every leader on the Capitol Hill. And Clean out the vile serpents who think they are above the laws.

  13. I support the raid simply because it forces the Congress, and the public, to confront other neglected dangerous legan precedents set by this Administration.
    Unfortunately, unless the Congress stands up for the rights of other citizens, go beyond themselves, great harm will have been done and will continue to be done with Congressional approval.

  14. "I would like to see the FBI Investigate Every leader on the Capitol Hill. And Clean out the vile serpents who think they are above the laws."
    This issue is bringing out the worst in a lot of people. This is proto-fascism — denounce the legislators as a group, and then send the police after them.
    That kind of response (which I've seen at Firedoglake, Instapundit, and I think Aravosis) is exactly why Kleiman is 100% right.

  15. If a Congressman commits a rape in his congressional office (and I would have to think it has occured more than once), would it be acceptable for the FBI to enter his office looking for evidence (e.g. fluid samples)?
    If so, where is the line drawn? If not, what limits Congressmen from doing anything at all? How about selling laws to foreign powers?
    Cranky

  16. > If it's too easy to get a warrant,
    > Congress should legislate standards
    > that must be met for a judge to grant
    > one when the target is a member of
    > Congress.
    Kinda going against my own argument, but you are aware that under the theory of the Unitary Executive that Cabinet agencies are not bound by laws or court rulings if the President instructs the agency to ignore them? And that in both word and deed the Bush Administration has put this theory into action?
    Cranky

  17. If it's too easy to get a warrant, Congress should legislate standards that apply when the target is a citizen. Treating elected officials like little tin gods who are above the law is how we got this kind of corruption in the first place.
    Could it be abused? Sure, and ordinary citizens are the subject of abusive legal processes every day.
    What's sauce for the goose…
    I don't think the Congressional leadership are in a state of bipartisan outrage because of a concern about separation of powers. I think it's because they know just how widespread corruption is in Congress, on both sides of the aisle, and are terrified at the thought of the voting public's reaction if their dark suspicions were replaced by certainty.

  18. Brett, partially true. The GOP has, of course, much more to worry about, both because they've held the power, and because such corruption was their intent from the beginning of the Gingrich Revolution (see 'K Street Project'). Another telltale sign is earmarks, once a sign of Democratic corruption, but now increased by the GOP Congress by a factor of 10 (IIRC).
    But the GOP Congress would also know that it's not now in Bush's interest to go after them full throttle for corruption. He needs them to be re-elected, to get through the next 2 1/2 years with no pesky investigations. After November, things get interesting – they don't dare go after Bush; Bush will probably be deep in 'Apres Mois, le Deluge'.
    However, Congress is now getting a taste of its own medicine – Bush violated a 200 year old custom, 'cause he could. Bush violates laws whenever the whim strikes him. Many member of Congress are probably now feeling a bit naked.
    With an opposition president, they could publicly open a can of 'whup-*ss' on him, but not one of their own party, when their prospects for re-election are so low.

  19. "The GOP has, of course, much more to worry about, both because they've held the power"
    Certainly got to agree with that; One of the chief advantages the Democrats have at the moment is that when you're down, there's no direction available but up.
    "and because such corruption was their intent from the beginning of the Gingrich Revolution "
    No, but it was something they fell back on, as soon as the going got the least bit tough. I think it would be fair to say that Delay and company were looking for an excuse to ditch all that inconvient "principle" jazz, and start doing business. But when you look at the immigration bill the Senate just passed, shoved through by the Republican leadership over the opposition of the Republican members, I think it's fair to say that you can't so casually conflate the corrupt Republican leadership with "the GOP", or even "the Republican Congressional caucus".
    In fact, Republicans are among the victims of this leadership, who conducted a counter-coup shortly after the '94 revolution.
    But the GOP Congress would also know that it's not now in Bush's interest to go after them full throttle for corruption. "
    I'm not so certain of that; Again, as you can see from the immigration vote, or the Medicaid drug benefit, his signing of the BCRA, or the failed Miers nomination, much of what Bush wants to accomplish runs contrary to what Republicans want. He might very well think that he could deal more easily with a Democratic majority, than with restive Republicans who have finally had their fill of him.

  20. MK wrote: But is it OK for a law enforcement agency to conduct political warfare against the legislature?
    No. I think I'm in agreement with you on the procedural question, Prof. Kleiman. As precedent, this rather stinks We've had more than enough Executive overreach of late.
    I just thought it was worth noting the possibility that Hastert, too, is playing hardball (e.g., signaling the admin that he expects some cover on this).

  21. Really, this whole mess just further convinces me that the only effective way to reduce party-protected political corruption is to pass a Constitutional amendment requiring the Attorney General (and maybe other high-level DoJ officials) to be confirmed, and periodically reconfirmed, by a Congressional supermajority. (And then to hell with the DoJ not having power to search Congressional offices).
    As far as I know, however, nobody else has ever recommended this.

  22. It sounds to me like the powers separation argument vs. the desire not to afford the overprotection of serious criminals creates a headbumping of two clearly important public interests.
    Whenever that occurs, developing and interposing a system of partisan-neutral judgment seems to make the most sense to me.
    From all the good points you've raised here, I'd suggest the first place to do that is to stop the judge-shopping. Require that three judges be in on such decisions about legislators, and that the three be chosen via a random lottery.
    The second layer would be to assign one member from each party that is a current member of the judiciary committee to be notified of a warrant request. They'd have to meet a security clearance requirement sp the info could not be leaked to any other legislator.
    Those two members would be responsible to (1) weigh the need for the warrant to determine if it's 'compelling', (2) present a counter argument to the three judges if they think it fails the 'compelling' test, and (3) if the judges rule against that anyway, each of those members would still retain the power to request a higher court review, again, with three judges randomly selected by lottery.
    Yes, such a system would slow the process, but in most balance of powers matters, that slower pace is justified. There also could be a bypass-the-appeal provision built in, to permit a faster process, if the FBI presents a compelling argument that (a) the legislator is destroying or is likely to destroy evidence in the interim, (b) national security damage is ongoing or imminent, or (c) a capital (vs. property) crime (murder, rape, or other life-threatening type) might occur within the extra day it takes for the appeal process to occur.
    Finally, as soon as the warrant has been served (if approved) and the evidence seized, the public would be notified of any objections raised by these two judiciary committee members (while evidence presented by the FBI would still be kept from such scrutiny.)
    That would keep a brake on appeals made for partisan reasons, making it less likely that an appeal would be made if, for example, a Congressman's allegedly a serial rapist or murder. As a result, aware their appeals must be made judiciously or they'd be subject to subsequent voter backlash, the two Judiciary Committee members would have incentive to keep partisan bias to a minimum and public/national security paramount.
    We've already seen that ethics by committee is unlikely to be resolved by any rulemaking process. So a fresh approach like this might be the best way to protect the two competing but important interests mentioned in my intro paragraph.

  23. So much for the rule of law. Why was Jefferson's search and details leaked to the press? Why was investigation of Hastert denied? This whole incident creates the image of white house news management. Where is the outrage when republicans enjoy free vacations, sweet real estate deals, or have their relatives or son-in laws promoted or hired by industry hacks. When the FBI gets a non-political leader and quits acting like a presidential enforcer with a big club, people will regain their faith in the organization.

  24. 1. Expulsion from Congress merely for being accused–not even indicted!– of wrong is inappropriate. The people of a district, not the representatives of other districts get to decide who represents them.
    Tom DeLay's district wanted to send a probable felon back to Congress, that's their business. Remember Congressman Matthew Lyon, jailed as a political prisoner under the Adams presidency. If such a man serves from his jail cell, he does this nation honor. It's up to the constituents to decide who is a political prisoner and who is a crook.
    2. The FBI could have deputized the Capitol Police to execute the search. That solves the Separation of Powers issue.
    In that regard: Cranky, the FBI does not investigate crimes like rape.
    3. Kevin Hayden is on the right track when he says that a safeguard against abuse is to have one member of each party notified of the search ahead of time and allowed to argue against. I think a better safeguard would be allowing them to witness it.

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