Quis custodiet ipsos custodes?

The FBI shouldn’t be able to raid Congressional offices. But that means that Congress has to start doing its Constitutional job of disciplining its own members.

Dennis Hastert and buddies are getting the big horselaugh from journalists and bloggers of all political orientations for complaining about the FBI raid on Rep. William Jefferson’s office. Given how indifferent Congressional Republicans have been to other forms of investigative and security heavy-handedness. they deserve all the mockery they get.

That said, as Matt Yglesias notes, there’s a real separation-of-powers issue here. The FBI is a big, powerful organization, with a well-deserved reputation for playing dirty when its organizational interests are in play. (To choose an example almost at random: there’s reason to think that the FBI files that torpedoed Kimba Wood and Zoe Baird got to the press via the FBI rather than via Hill staffers; Baird in particular was seen as a potential threat to the FBI’s independence.) Do we really want every Congressman who criticizes the Bureau or fails to vote it more money or wider powers to have to worry about potential revenge?

Robert Mueller seems to be pretty much a straight shooter, without much partisan or ideological loading. But Louis Freeh was something else again, and Freeh’s political and cultural biases were consonant with those of the organization, which remains very much the outfit J. Edgar Hoover created. The successful war Freeh waged against Bill Clinton (not just over Whitewater and Monica, but over the phony Chinese spy scandal) ought to be a warning. Giving the FBI more power over the Congress will not in the long run be good for liberalism.

In particular, now that the precedent has been established, what’s to keep the Bureau from raiding the offices of Congressional Democrats in leak investigations? Finding a judge to sign a search warrant is trivial, especially in any case with the “national security” label.

The Constitution places the authority and responsibility for disciplining Congressional misconduct squarely upon the Congress. The problem, of course, is that the Congress has been signally lax in carrying out that responsibility. If the Congress won’t do its job, then the Bureau will be happy to take over.

The House Ethics Committee and its Senate counterpart should each have its own corps of investigators, with powers of subpoena and search within the Capitol complex on the approval of half the members of the relevant committee: that is, on the approval of the Members or Senators from either party. (Perhaps, given the likelihood that committee members might leak investigative material to their partisan colleagues under scrutiny, there ought to be two independent investigative agencies in each House, one Democratic and one Republican, each reporting only to its half of the Ethics Committee.)

Given the way the Congress operates, I would think that overuse of the search power would be the last thing we had to worry about, though of course a DeLay or an Armey or a Gingrich might easily abuse it. But that power has to exist somewhere, and I’d rather have it on the Hill than down at what’s still called the J. Edgar Hoover Building.

Update I note with glee that Hastert himself seems to be under criminal investigation. No real surprise there; it’s inconceivable that DeLay could have run the House Republican Conference as a Racketeer Influenced and Corrupt Organization all those years without the Speaker’s connivance. But note that this news (sourced to “senior U.S. law enforcement officials”) hit the media the day after Hastert dared to criticize the Bureau. And note also that ABC supinely transcribed the leak, without alerting its viewers/readers to the obvious motivation of the FBI to dirty up one of its critics. I said the Bureau played rough. I never denied they were good at it.

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

10 thoughts on “Quis custodiet ipsos custodes?”

  1. FBI cultural is NOT unanimously as it was under Hoover. There are agents today who are trying to make something else. Every now and then some come to the public eye. I note that Coleen Rowley is now running for the House in MN – that's one example. I personally know at least a couple of others. Perhaps if Mueller stays around for the full term he will be able to promote people who can help change the culture. We should all hope so, because otherwise the FBI potentially can be yet another arm of an out of control executive branch.

  2. Zoe Baird was NannyGate, she hired an illegal alien to take care of her kids during the day.
    I am not quite sure how you think that she was "torpedoed" by FBI files, or that she was a "threat to the FBI's independence.
    You should really research things before you write about them.

  3. Yes, May. She was "nannygate." And just how do you think the raw FBI investigative files containing that information got to the press?
    As to her threat to the Bureau's independence: she was well known as a tough manager. The Bureau has avoided control by the Justice Department, of which it is nominally a part, mostly because Attorneys General are lawyers rather than managers, and tend to concentrate on the lawyering work done by attorneys in Main Justice and neglect the investigative agencies.

  4. "The Constitution places the authority and responsibility for disciplining Congressional misconduct squarely upon the Congress."
    It says that of "disorderly behavior", and even allows expulsion, but bribery is a criminal offense, and nothing in the Constitution suggests that members of Congress have any particular immunity to the legal system. Indeed, bribery is a felony, and thus doesn't even fall under the clause protecting members from arrest while Congress is in session.
    Not only does the Constitution permit members of Congress to be subjected to search warrants, just like any ordinary person, in this case it extends explicit license to arrest Jefferson, and lock him away.
    You'd have had a good point, though, if Jefferson stood accused of refusing to shut up while somebody else spoke, or had gotten into a fist-fight with another member on the floor.

  5. Well, the fact remains that Zoe Baird actually did commit a legal offense, which is generally regarded as a no-no for the Attorney General.
    Kimba Wood, however, did NOT do so — and the fact that the Clinton Administration panicked and pulled her nomination anyway (after a discussion between White House aides, according to "Newsweek", about what Rush Limbaugh Would Say) was the first thing that gave me that dropping-elevator-car feeling that we had once again picked a bunch of incompetents.

  6. I don't think the literal Constitutional issue is very strong. Jefferson is being investigated for a crime committed outside the Capitol and he has ignored the relevant subpoenas.
    But the other reason to oppose the Hastert/Pelosi madness is we do not want to create rights for Congress that do not apply to citizens. We already have the worst Executive in our history and in no small part because Bybee and Woo resurrected the Dispensing Power from the Stuart kings. Now Congress wants to get in on the act, playing the nobles to Bush's king. Bad idea.
    And as to the CBC, I wasn't surprised. Among black leaders of a certain generation, having thwarted The Man by making it to Congress (or Mayor if you are Marion Barry) is what's supremely important. How you conduct yourself in that office, much less so.

  7. It seems a bit much to suggest that the Baird nomnation was derailed by the FBI. The nomination wasn't going anywhere, no matter who leaked the information. As for her reputation as a "tough manager": she earned that running a mid-size legal department. I'm not impressed, and I doubt the FBI was quaking in fear.
    On the more serious point, there is no legal merit to Hastert's point, but it's actually been given a surprisingly respectful hearing. It's been caught up in attempts to bash the Bush administration. Which is odd–if there's a lesson here, it's that Congress, just like the executive, is likely to over-read their perogatives.
    There is no generalized exemption from our criminal laws for our congressional representatives, whether they investigate themselves or not.

  8. What almost everyone seems to have missed is that there was a right way to do this, and the Bush Administration chose the wrong way.
    The right way was to ask the Capitol Police to conduct the search. Witnesses from the FBI, Hastert's office, and Pelosi's office could have been present to verify that the FBI (a) got what was requested in the warrant, and (b) did *not* get constituent letters, lists of supporters, Democratic strategy memos, or personal files, especially those of Jefferson's staff.
    People who are gloating about a crook getting his just desserts should consider what happens when the Executive's power as chief law enforcement officer puts him over the Legislative branch. The Adams presidency, which amounted to period of tyranny, is a lesson to those who know their history and their Constitution.
    Which evidently excludes most of the people who comment on the issue.
    Finally, we should all be wary when a prosecutor tries its case in the press. Solid cases are tried in the courtroom. Furthermore, I don't know the details of the release of evidence to the press, but the release could itself be a criminal act.
    This issue divides fairly cleanly: either you are for separation of powers and legality or you are for giving all power to the Executive, including the power to break the law at will.
    I know which side of that divide I stand on.

  9. MK wrote:
    "Given the way the Congress operates, I would think that overuse of the search power would be the last thing we had to worry about, though of course a DeLay or an Armey or a Gingrich might easily abuse it. But that power has to exist somewhere, and I'd rather have it on the Hill than down at what's still called the J. Edgar Hoover Building."
    So, let's presume the worst of all three branches.
    They are all incompetent, mendacious and will behave criminally if they think they can get away with it.
    So, you'd rather have the criminal congress investigate itself, than have the criminal executive seek a warrant from the criminal judiciary before searching the offices of a member of the criminal congress.
    Seems to me that it would be much easier for the criminal congress to gang up on an honest member if the criminal congress had the sole search power, than it would be for two separate criminal gangs (executive and judiciary) to agree to do so.
    Even if they are all criminals but one lone congressman, each gang does have its own interests, which sometimes conflict with those of the other two. But one gang with the sole search power would not need cooperation of another, possibly competing, gang.

Comments are closed.