Separation of Powers and the FBI Raid

The Washington Times (Washington, DC), June 11, 2006 | Go to article overview

Separation of Powers and the FBI Raid


Byline: Robert F. Turner, SPECIAL TO THE WASHINGTON TIMES

The claim that FBI execution of a judicial search warrant in a Capitol Hill office seeking evidence of felony bribery is akin to the King of England having a troublesome parliamentarian imprisoned in the Tower of London without trial to "intimidate" others, or that it violates the Constitution's "Speech or Debate Clause," does not even pass the straight-face test.

The Supreme Court settled the meaning of the Speech or Debate Clause years ago, holding in various cases that the clause protects only "legislative acts" like giving a speech on the House floor, remarks during hearings, official reports and votes. It provides no protection for defamatory statements made in speeches outside Congress, newsletters, or communications with government agencies on behalf of constituents. And it certainly doesn't immunize communications such as those Louisiana Rep. William Jefferson is alleged to have made, promising (in return for $400,000 in bribes) to influence high-ranking government officials in Nigeria and Ghana to do business with a Kentucky corporation.

So the remaining constitutional issue is whether congressional leaders are correct when they allege that this investigation violates "the doctrine of separation of powers" upon which our Constitution is founded. And here their claim is even more absurd.

In explaining the new Constitution in Federalist number 47, James Madison wrote that "the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

It is useful to review the competing procedures at issue here to see which system is truly more consistent with separation-of-powers principles. Under Article II, Section 3, of the Constitution, the president is expressly directed to "take care that the laws be faithfully executed." Congress makes laws, and it has been a felony for members of Congress to accept bribes for more than 150 years. The job of investigating and prosecuting violations of those laws is entrusted by the Constitution to the Executive branch; and, to facilitate this process, the Justice Department has both the FBI and 93 U.S. Attorneys one for each judicial district charged with prosecuting crimes.

Before the FBI can obtain a criminal search warrant, it must persuade a federal judge (appointed for life by the president, with the advice and consent of the Senate, to safeguard judicial independence) that there is "probable cause" to believe both that a crime has been committed and that evidence of that crime will be disclosed by the search. The application must also include a particular description of the place to be searched and the property to be seized. …

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