How strong is the case against Louisiana's
Representative William Jefferson? According to numerous press accounts, after
videotaping Jefferson receiving a $100,000 bribe from an FBI informant, the
government executed a search warrant of his home and found $90,000 of that
money hidden in his freezer. In another case, a Kentucky businessman pleaded
guilty to paying Jefferson $400,000 in bribes for official favors; and one of
the congressman's key staff members has already entered a guilty plea to aiding
and abetting the bribery of a public official.
Based upon such compelling evidence and Jefferson's refusal to comply with a subpoena to surrender key documents for eight months, a federal judge issued the search warrant that was executed in the congressman's Capitol Hill office last month. The FBI took exceptional measures to ensure that no privileged documents would be surrendered to investigators, with any close calls being made by a federal judge.
One might expect that others in Congress would be grateful that a scoundrel in their midst has apparently been caught red-handed. But there is obviously a more fundamental issue here, as House Speaker Dennis Hastert quickly joined forces with Minority Leader Nancy Pelosi, not to commend the FBI for its outstanding work, but to vehemently denounce its actions on the theory that members of Congress are above the law.
Specifically, they accused the FBI of violating the constitutional principle of separation of powers and the "Speech or Debate" clause of the Constitution. House Judiciary Committee Chairman James Sensenbrenner scheduled hearings on this "profoundly disturbing constitutional question."
The "Speech or Debate" clause is contained in Article I, Section 6, which provides that members of Congress "shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." The provision was designed to protect legislators from civil lawsuits and unwarranted harassment by the executive branch, such as charges of defamation stemming from criticisms of the president during congressional debate.
Put simply, only Congress can inquire into the motives or content of votes, speeches, or other official legislative acts.
But as the Supreme Court observed in the 1972 case of United States v. Brewster, the clause was never intended to immunize corrupt legislators who violate felony bribery statutes - laws that have expressly applied to members of Congress for more than 150 years. In Brewster, the court noted the clause was not written "to make Members of Congress super-citizens, immune from criminal responsibility," adding: "Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator."
Such behavior is therefore not protected by the Constitution. The purpose of the Speech or Debate clause was to protect the integrity of the legislative process, and the court noted that bribery, "perhaps even more than Executive power," would "gravely undermine legislative integrity and defeat the right of the public to honest representation."
A dozen years ago, I testified before the House Committee on Administration on this same basic issue. Newt Gingrich and other reformers were trying to bring Congress under the same ethics laws it had imposed upon the rest of the country, and some indignant legislators seemed confident that the laws were not supposed to apply to them. The hearing was held in a small room in a part of the Capitol Building off-limits to the public, with exactly enough chairs for members, staff, and the three witnesses.
Two members of the public who managed to make their way to the room were turned away on the grounds that there was "no room" for public observers. Critics of the Gingrich proposal did not hear what they wanted. Some seemed genuinely shocked when I informed them that, in Federalist No. 57, James Madison noted one of the constraints in the Constitution to prevent legislators from enacting "oppressive measures" was that "they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society."
It is increasingly rare to find a spirit of bipartisanship in Congress these days. So a display of the spirit would have been a good thing to see - especially in a time of war - but for the fact that the issue now uniting Republican and Democratic leaders is an outrageous assertion that members of Congress are above the law, and that the Constitution immunizes legislators who betray their public trust in return for bribes from investigation by the executive branch.
In light of the attitudes held by so many of our legislators, it is no wonder three times as many Americans disapprove of Congress's job-performance as approve, according to last month's Gallup Poll. Those are Congress' lowest numbers since the Democrats were last in power a dozen years ago.
According to Gallup, 83 percent of Americans view congressional corruption as a serious problem. There is an election coming up in five months, and legislators who wish to survive it might wish to step back and permit the FBI to do its job.
Robert F. Turner is co-founder of the Center for National Security Law at the University of Virginia School of Law and a professor on the university's general faculty.
