William Jefferson, Bribery, and Separation of Powers

There are many interesting facets to the William "I hid bribe money in my freezer" Jefferson story.

For one, there is the "I can't believe he could be so stupid" facet. It is perhaps the most visible and tangible display of public corruption in decades. Further, there is the added element of a New Orleans Congressman betraying his constituents, constituents who have been betrayed by several levels of government already.

Then there is the international bribery angle. According to one theory, the suitcase money was supposed to go to the Vice President of Nigeria to produce contracts for Jefferson's favorite companies.

There are political facets, such as whether the unfolding Jefferson story, as evidence of bipartisan corruption, punctures holes in the Democratic midterm election strategy of portraying the Republican Congress as a "culture of corruption."

And sports metaphors abound. Bribery in Congress is looking like steroids in baseball: People know there's a lot of it going on, but no-one is quite sure to what extent it pollutes the game.

Instead of all these possible angles, to these Washington Post writers, and these ones as well, and apparently most of the Washington press corps, it's a separation of powers issue? According to some, separation of powers precludes an FBI raid on a Congressional office in connection with a bribery investigation. If this is the rule, then all corrupt Congressmen must do to evade the law is make sure that evidence of their wrongdoing is stored at the office. As Viet Dinh puts it:

"But Viet D. Dinh, a former assistant attorney general in the Bush administration who is now a Georgetown University law professor, said that "the raid on his offices itself does not define a constitutional issue." The constitutional privilege for lawmakers does not "expand to insulate everything that goes on in a congressional office, especially if there's allegations of abuse of process or bribery," Dinh said. ". . . The fine line is whether or not it relates to a legislative process or not, not whether they've raided his office."

This DOJ Manual explains that the Speech and Debate Clause provides absolute immunity from civil suit or criminal prosecution for legislative acts.

"The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976)."

The House maintains that the Clause gives them a right to refuse requests for information from the executive branch. But this only shields information related to actions within the legislative process (e.g. speeches, votes, bill writeups, etc.). It should not shield evidence related to a bribery investigation. Of course, every member of the House under investigation is going to claim that their office only contains information relating to legislative acts. But if the FBI cannot search the House, who can? Interpreting the Clause to be an absolute bar to the execution of warrants on Capitol offices would severely impede public corruption investigations because the subjects could hide evidence in their offices, maintain that it is covered by the Clause because it relates to the legislative process, and thereby hide behind the Constitution. The Framers intended the Clause to keep the executive branch from punishing legislators from engaging in speech and expressing their viewpoints -- not as a shield from bribery investigations.