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Congress Isn't Above the Law
And bribery isn't "speech or debate."

By ROBERT F. TURNER

[COMMENT:  Yea and Amen to the article below. 

It is almost never true that a body of people will discipline themselves.  That means that those under them must do the disciplining.  That will be true in almost all cases. 

We think that people are raised to their level of incompetence.  That may be so, but we are also raised to the level beyond which those below us are willing to hold us accountable.  So, whether incompetent or evil-minded, we get so "important" in the public eye that no one will say, "Stop!" 

That is terribly dangerous, and is true of almost every community process, from families on up.  The price of freedom is the vigilance of those under authority to hold those over then accountable for being good authorities.     E. Fox]
 

When congressman think laws are for others and not for themselves we are in
a sorry state.

Sunday, May 28, 2006 12:01 a.m. EDT

How strong is the case against Louisiana's Rep.
William Jefferson?

According to numerous press accounts, after
videotaping Mr. 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 Mr.
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 Mr.
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 weekend.
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
has scheduled hearings for Tuesday 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 law suits
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
U.S. 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 a recent Gallup Poll. Those are
Congress's lowest numbers since the Democrats were
last in power a dozen years ago.

According to Gallup, 83% 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.

Mr. Turner is a 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.

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