LOS ANGELES – So now we know what it takes for House Speaker Dennis Hastert and Minority Leader Nancy Pelosi to be united in outrage.
They finally came together this week, passionately so, in protest.
No, it wasn’t terrorism, or inadequate health care, or the $50 fill-up that prompted Congressional leaders to put partisanship aside.
In fact, it had absolutely nothing to do with you and me.
It was all about them. Or rather, one of their own, should they choose to claim him.
How dare the Justice Department treat a member of Congress who has been behaving like a common criminal as if he were suspected of being a criminal.
How dare they treat one of them like one of us.
That’s what has provoked a constitutional crisis that has forced the president on this Friday morning actually to intervene to protect the suspected crook, at least temporarily. After all, he’s a member of Congress. And lest you think I’m a partisan on this one, he happens to be a suspected Democratic crook.
Last July, Rep. William Jefferson was caught on videotape accepting $100,000 in marked $100 bills from a Virginia businesswoman and FBI informant who was seeking the Congressman’s "help" for business deals in Africa. On tape, he laughs about writing in code about the deal: "All these damn notes we're writing to each other as if we're talking, as if the FBI is watching."
In August, the FBI searched his home and found all but $10,000 of the cash in Rep. Jefferson’s freezer. In September, the Justice Department issued subpoenas to the Congressman demanding that he produce certain documents; he reported the subpoenas to the Ethics Committee of the House, but did not produce the documents that were demanded.
In the meantime, two former associates of the Congressman, one a former aide and the other a businessman, have plead guilty in federal court to bribery in connection with a scheme to secure business opportunities for a communications company that was promoting internet and cable television technology in Nigeria, Cameroon and Ghana.
So last Saturday, acting on the basis of a warrant signed by a federal judge and supported by an 83-page affidavit, and with special procedures in place to filter documents, a team of FBI agents, dressed in suits, entered Rep. Jefferson’s Congressional office to execute a search warrant. And Congress erupted.
In a joint letter, Pelosi and Hastert expressed alarm.
According to the Speaker, "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case."
Former House Speaker Gingrich called it a "constitutional crisis." Senate Majority Leader Bill Frist expressed "deep concern."
It was the first time anyone could remember that law enforcement officials had searched a Congressional office.
They can listen to our conversations, search our homes and offices, keep track of our phone records, but when it comes to members of Congress, hold on....
I remember some years ago, a friend had a drug case in the Supreme Court, and her brilliant tactic was to frame the whole case, which involved a footlocker full of marijuana at a train station, as if it were a briefcase full of confidential papers that someone, say a Supreme Court justice reviewing draft opinions, might be carrying. Need I point out that even at a time when fourth amendment protections were shrinking daily, she won. It’s the "whose ox is being gored" principle of law.
To be sure, the "speech and debate clause" of the Constitution guarantees the Congress freedom from intrusion of the other branches of government in the conduct of its official duties. But nothing in that clause protects members of the Congress from prosecution for activities that go beyond their official business.
By the same token, while constitutional scholars are busy debating the point, a strong argument can be made, and has been, that lines must be drawn between official legislative papers, which must be protected from seizure, and evidence of bribery, which should not.
The fact that evidence is stored in a Congressional office, as opposed, say, to a home freezer, should not immunize it from seizure as evidence. Particularly where, as here, the government first sought to secure relevant evidence by the less intrusive use of a subpoena, the case for a search is particularly compelling.
Democratic leaders are now pressuring Rep. Jefferson to give up his plum assignment on the House Ways and Means committee. It’s about time. But that is only a first step, and it comes nearly 10 months after he gave the Ethics Committee notice of the subpoena. And it is the Democrats who are trying to make ethics an issue in the midterm elections.
But there is an even more basic point here. How dare Congressional leaders who have failed to protect the privacy of individual Americans now rise up in mock shock when it is their offices who are penetrated.
The search here was conducted under the strictest safeguards, with the protection of a warrant and clear rules for which papers were to be seized and how they were to be handled. The utmost respect was shown, notwithstanding the clear presence of probable cause.
Were it only the case that the rest of us were entitled to so much protection, or that Congress were equally outraged when it wasn’t afforded.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
Estrich's books include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the Fox News Channel.