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ATLANTIC HIGHLANDS HERALD |
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BREAKING THE COMPACT A few weeks ago House Speaker Denny Hastert raised cain when the FBI raided Representative William Jefferson’s (D-LA) House office under a search warrant issued by U.S. District Judge Thomas F. Hogan. Mr. Jefferson – already under investigation for bribery – had been filmed, in flagrante delicto, taking $100,000 in marked currency from a covert agent. The FBI searched the congressman’s office after they found all but $10,000 of the cash in a freezer in Mr. Jefferson’s Louisiana home. Spokesmen said the Bureau believed Mr. Jefferson might be using his office to conceal additional evidence. Numerous reports and opinion pieces have concentrated on the minutiae of the incident – i.e., the political dynamics, the rare bipartisan unity shown by House leaders, and the unfortunate fact (for the GOP) that the uproar has shoved Mr. Jefferson’s alleged misdeeds off the front page. (He now is busy painting himself as the victim instead of the perp.) Print and electronic media commentators gave the horselaugh to Speaker Hastert’s contention that the raid violated the Constitution’s “separation of powers protections”. Numerous pundits argued that “no one is above the law” – insisting that Mr. Jefferson’s office cannot be used to conceal a crime. One talk-show jock said Mr. Jefferson could have no expectation of privacy in his office because it was “government property”. This assertion, in particular, is almost certainly flawed. If you let your house to a renter, you cannot search it just because you own it. If you try, the renter will drag you into court and he’ll win the argument. Certain rights, including privacy, attach to occupation of a property. Unless the occupant is a squatter, you can’t go in there without his permission. Of course, a properly executed search warrant trumps any rights of privacy or property because a court has said so. But I suspect that Mr. Hastert, my old Wheaton College classmate, is taking a much longer view of the situation than his media critics and scoffers. (Just name-dropping – we weren’t acquainted when we were students in the early ‘60s.) He is thinking far beyond today’s Republican president and Republican Congress. Speaker Hastert and Speaker-wannabe Pelosi agree here because both can probably foresee nasty political problems proceeding from a Jefferson-raid precedent. Letting a president get the idea that all he needs is a friendly judge to issue a warrant, so he can raid the offices of legislators who disagree with him, would be a dangerous development. A president’s misuse of law-enforcement powers is justly feared. Liberals like to wave Richard Nixon around, but he actually did little. Mr. Clinton was the true exemplar – using the FBI to bring charges of incompetence and possible criminal activity as a pretext for firing the director and members of the White House Travel Office. (A court later acquitted Director Billy Dale of all charges, but he was still out of a job.) Clinton operatives also saw hundreds of FBI files on Republicans. Although Republican leaders complained, no charges were ever brought for the breach of privacy involved. Charles Colson, a former top advisor to President Nixon, wryly noted that he went to prison for mishandling one FBI file. But the shoe was on the other foot then – a Republican president and a Democratic Congress. Alarum bells sounded in the Congress for another reason when the FBI hit Mr. Jefferson’s office. A federal court was in on the raid, too, since a federal judge had issued the search warrant. This amounted to a twofold breach of The Compact. What is The Compact? An unwritten agreement between the federal government’s three branches to stay out of each other’s business and not try to strong-arm each other. With very few exceptions it was honored for most of the last century. The president has vast enforcement powers at his disposal. If he chose, he could raise hell with judges and congressmen – via the IRS, the FBI, the INS (remember the illegal nannies scandals?) and the SEC – to make sure the courts and Congress follow his political wishes. Nothing beats an IRS audit – or the threat of one – to make a judge or congressman see the “right path” on some issue. In almost unlimited numbers of ways the president could use his powers to “persuade” the other branches. Even the media could probably be brought round to the president’s point of view via pressure applied at the right time, in the right places. That the executive doesn’t generally do this is a testimony to the strength of The Compact. The Congress can “influence” the presidency legitimately by approving (or not) his political appointees, or even by removing them. The House can impeach (accuse) an appointee – or even the president, himself. The Senate conducts the trial. The Congress can also override a president’s veto of legislation. Finally, the Congress can use the power of the purse to influence the president’s management of the Executive Branch. Should the Congress have a serious difference with the president about the FBI, for example, it could defund the Bureau until the dispute was resolved. (Of course, the Congress would certainly have to pass such legislation over the president’s veto.) Controlling the public purse is a very important power. On occasion, Congress has tried to control the president more directly. In 1868, Congress passed a law to keep Andrew Johnson from removing cabinet members without Congress’s concurrence. (Mr. Johnson “inherited” his cabinet when he assumed the presidency after Mr. Lincoln’s assassination.) Noting no such Constitutional stipulation, Mr. Johnson thumbed his nose and removed Secretary of War Edwin Stanton. The House impeached him for violating the Tenure of Office Act. The Senate failed by a single vote to convict him. The Supreme Court – which might have defused the situation – waited until the smoke cleared before ruling that Congress lacked authority to limit the president’s control over his cabinet, except as Constitutionally ordered. In more recent times, a Democratic Congress enacted legislation that authorized “special prosecutors” to investigate executive branch officials. The law was meant to control Republican presidents. It furnished much sport for Democrats until a Republican Congress started appointing special prosecutors to investigate Democratic administration officials. All the fun went out of the sport, and Congress soon repealed the special prosecutor law. The Congress is constitutionally empowered to limit the Supreme Court’s purview, but rarely does. Some commentators (including this one) believe Congress is reluctant to get into a fight with the Court – just in case the Court might retaliate by trying to control what the Congress does (and how it does it). “Let sleeping dogs lie” seems to be Congress’s motto with respect to the Court. Thus far, the Congress has supinely watched the Court monster-mash across American society – trashing important symbols of our culture and elevating deviancy to protected status. The Executive and the courts have mostly avoided confronting each other since FDR openly threatened the Supreme Court with his 1937 forced-retirement/court-packing plan. Lately, the Court has become frisky – infringing on the president’s powers to wage war, and even grandly ruling that a prayer is still OK at his inaugural ceremony. (Mr. Bush must have known that the latter ruling was entirely superfluous, but he withheld comment.) Flushed with its growing power, perhaps the Supreme Court has forgotten that the president can enforce (or not enforce) the Court’s rulings, essentially at his discretion. Presidential refusal to enforce a ruling would be a radical – perhaps long overdue – action to rein in the Court. When Mr. Hastert protested the Jefferson raid, Mr. Bush quickly backed down – ordering all evidence seized by the FBI to be sealed for 45 days. I interpret that action as Mr. Bush’s tacit admission that he had violated The Compact. He was attempting to make amends. But District Court Judge Hogan, who issued the warrant to search the congressman’s office, has made no similar gesture (to my knowledge). Accordingly, as things stand The Compact has been broken in a new and important way. Only time will tell if the Congress will assume that it is now abrogated altogether, with respect to the Judicial Branch. Perhaps a new power-struggle between branches of the Federal government would not be a bad thing. The people have grown restive under the Judicial Branch’s heavy hand, and politicians are beginning to speak darkly of a “judicial oligarchy”. Time to eliminate the bad blood and bring things back into balance. “Who would be free themselves must strike the blow.” (Frederick Douglass)
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