In power, Democrats lose zeal for in­ves­ti­ga­tions

The Washington Times Weekly - - Politics - BY CHUCK NEUBAUER

When Democrats made their case dur­ing the 2006 elec­tions about why they should con­trol Congress, they of­fered up Repub­li­can law­mak­ers like Mark Fo­ley and Rick Renzi as ex­am­ples of the “cul­ture of cor­rup­tion” they wanted to rid from Wash­ing­ton.

Mr. Fo­ley of Florida re­signed af­ter be­ing ac­cused of send­ing in­ap­pro­pri­ate e-mails to a 16year-old con­gres­sional page. Mr. Renzi of Ari­zona faced ques­tions about land deals and ac­cu­sa­tions that he helped a de­fense con­trac­tor that em­ployed his fa­ther.

Con­vinced that many mem- bers of Congress had lost their moral com­pass, vot­ers sided with Democrats and thrust Repub­li­cans from power.

But when the lime­light faded, the con­tro­ver­sies took an un­ex­pected twist: Democrats, now in con­trol, sought to block or limit pros­e­cu­tors from gath­er­ing cer­tain ev­i­dence of cor­rup­tion against mem­bers of Congress on con­sti­tu­tional grounds, com­pli­cat­ing the crim­i­nal cases against the two Repub­li­cans.

House Speaker Nancy Pelosi of Cal­i­for­nia and the Demo­cratic lead­er­ship joined with top Repub­li­cans to con­tinue a years­long tra­di­tion au­tho­riz­ing the House gen­eral coun­sel’s of­fice to in­ter­vene in out­side in­ves­ti­ga­tions of its mem­bers.

Through court fil­ings, the bi­par­ti­san coali­tion sought the ex­clu­sion of ev­i­dence it said was ob­tained in vi­o­la­tion of Ar­ti­cle 1, Sec­tion 6, Clause 1 of the U.S. Con­sti­tu­tion. The clause pro­tects the leg­isla­tive branch from med­dling by the other two branches, declar­ing that “for any Speech or De­bate in ei­ther House, [se­na­tors and rep­re­sen­ta­tives] shall not be ques­tioned in any other Place.”

Many see use of the clause as an ef­fort by Congress to pro­tect its own.

“I think the House as well as the Se­nate tries to over­ex­pand that right,” said Wash­ing­ton lawyer Robert S. Ben­nett, a prom­i­nent white-col­lar de­fense lawyer who has served as spe­cial coun­sel to the Se­nate Se­lect Com­mit­tee on Ethics in sev­eral ma­jor cases.

Mr. Ben­nett said the clause should be used “nar­rowly” and not “to cover things up.”

“Congress is largely un­ac­count­able. [. . . ] Ethics en­force­ment in Congress is largely a joke,” he said.

Mrs. Pelosi’s of­fice makes no apolo­gies. There is “no in­com­pat­i­bil­ity be­tween ad­her­ence to the con­sti­tu­tional pro­tec­tions of the Speech or De­bate Clause and the ef­fec­tive in­ves­ti­ga­tion and prose­cu­tion of mem­bers of Congress ac­cused of wrong­do­ing,” her of­fice told The Wash­ing­ton Times.

“On a bi­par­ti­san ba­sis, we are ne­go­ti­at­ing with the Depart­ment of Jus­tice to de­velop pro­to­cols that will meet the needs of law en­force­ment while re­spect­ing the sep­a­ra­tion of pow­ers and the in­de­pen­dence of the leg­isla­tive branch,” Pelosi spokesman Nadeam El­shami said.

In a let­ter last year, House

Gen­eral Coun­sel Irv­ing B. Nathan said the po­si­tions taken by his of­fice “are not de­signed and have not had the ef­fect of shield­ing any mem­ber from the crim­i­nal jus­tice sys­tem,” not­ing that 35 mem­bers of Congress have been pros­e­cuted in the past 30 years.

With at least a half dozen other mem­bers of Congress re­ported to be un­der in­ves­ti­ga­tion in re­cent years, House leaders and their at­tor­neys haven’t talked about where else they may have in­ter­vened. At­tor­neys for the law­mak­ers re­fused to an­swer ques­tions about con­gres­sional in­ter­ven­tion, cit­ing the se­crecy re­quire­ments of grand jury pro­ceed­ings.

The Speech or De­bate clause was de­signed to pro­tect mem­bers of Congress from in­tim­i­da­tion by the ex­ec­u­tive or ju­di­ciary branches. It im­mu­nizes mem­bers from law­suits and crim­i­nal charges for leg­isla­tive ac­tions and pro­tects law­mak­ers and their staffs from hav­ing to tes­tify about or turn over doc­u­ments re­lated to their leg­isla­tive ac­tiv­ity.

Pros­e­cu­tors, de­fense lawyers and the courts have ar­gued for years over how far the pro­tec­tions ex­tend and whether a vi­o­la­tion taints a whole pool of ev­i­dence.

The height­ened con­cern over whether fed­eral in­ves­ti­ga­tors have over­stepped their au­thor­ity be­gan af­ter the FBI searched Rep. William Jef­fer­son’s Capi­tol Hill of­fice in a bribery in­ves­ti­ga­tion in May 2006. Mr. Jef­fer­son’s trial on charges that he so­licited bribes be­gan last week in a fed­eral court­room in sub­ur­ban Wash­ing­ton.

In 2006, House Speaker Den­nis J. Hastert, Illi­nois Repub­li­can, and Mrs. Pelosi, then the mi­nor­ity leader, asked House at­tor­neys to seek to ex­clude ev­i­dence FBI agents had gath­ered dur­ing what many law­mak­ers called an un­prece­dented search.

Mr. Jef­fer­son was in­dicted in June 2007 for so­lic­it­ing bribes from peo­ple who wanted help in ad­vanc­ing their busi­nesses in Africa. The in­dict­ment said FBI agents found $90,000 in cash in a freezer in the Louisiana Demo­crat’s Wash­ing­ton, D.C., home, pur­port­edly to use to bribe a Nige­rian gov­ern­ment of­fi­cial.

House at­tor­neys, act­ing on be­half of the bi­par­ti­san lead­er­ship, filed a friend-of-the-court brief in the Jef­fer­son case, ar­gu­ing that he did not have an op­por­tu­nity to screen and re­move pro­tected leg­isla­tive records be­fore the FBI raid. A fed­eral ap­peals court later ruled that the search vi­o­lated his con­sti­tu­tional rights and or­dered priv­i­leged ma­te­rial re­turned.

In the Renzi case, the House at­tor­neys rep­re­sent­ing the bi­par­ti­san lead­er­ship asked the court to throw out wire­tap ev­i­dence col­lected by FBI agents, say­ing its use vi­o­lated the clause. A rul­ing in the case is ex­pected soon. Mr. Renzi, who sur­vived the 2006 elec­tions but did not seek re-elec­tion in 2008, was in­dicted in Fe­bru­ary 2008 on charges of ex­tort­ing busi­nesses who wanted his help with fed­eral land swaps.

“The Speech or De­bate Clause was never in­tended to pro­vide mem­bers of Congress with blan­ket pro­tec­tion from prose­cu­tion for crim­i­nal acts,” Me­lanie Sloan, ex­ec­u­tive di­rec­tor of Cit­i­zens for Re­spon­si­bil­ity and Ethics in Wash­ing­ton (CREW), wrote in a brief in the Renzi case. She said the court would be “im­mu­niz­ing mem­bers of Congress from crim­i­nal in­ves­ti­ga­tion” if it said gov­ern­ment agents may not in­ci­den­tally over­hear leg­isla­tive ma­te­rial while mon­i­tor­ing tele­phone con­ver­sa­tions.

In the Fo­ley case, Florida in­ves­ti­ga­tors were de­nied un­fet­tered ac­cess to his gov­ern­ment com­put­ers when House at­tor­neys ar­gued that such a search would vi­o­late the clause. In Septem­ber, Florida’s top law en­force­ment of­fi­cial said in­ves­ti­ga­tors were “de­nied ac­cess to crit­i­cal data” and the case was dropped.

Mr. Hastert asked au­thor­i­ties in Oc­to­ber 2006 to in­ves­ti­gate whether Mr. Fo­ley vi­o­lated the law by send­ing in­ap­pro­pri­ate com­puter mes­sages to the page. Two years later, the Florida Depart­ment of Law En­force­ment (FDLE) said House at­tor­neys ar­gued that the clause pre­vented po­lice ac­cess to his com­put­ers without Mr. Fo­ley’s per­mis­sion be­cause the hard-drives con- tained data deal­ing with leg­isla­tive ac­tiv­ity.

In De­cem­ber 2007, FDLE Com­mis­sioner Ger­ald Bai­ley asked Mrs. Pelosi for her help in gain­ing ac­cess to Mr. Fo­ley’s com­put­ers. Ac­cord­ing to the FDLE’s now-pub­lic in­ves­tiga­tive file, she re­ferred the re­quest to House at­tor­neys who of­fered to search the com­put­ers on the con­di­tion that Mr. Fo­ley’s at­tor­neys could re­view and re­move any doc­u­ments they de­ter­mined were pro­tected by the clause.

Mr. Bai­ley said he was “sure any­one be­ing in­ves­ti­gated by FDLE would like the op­por­tu­nity to re­view and fil­ter ev­i­dence be­fore pro­vid­ing it to us.” Florida in­ves­ti­ga­tors never got ac­cess, and the case was closed. Sep­a­rately, the FBI also in­ves­ti­gated Mr. Fo­ley and didn’t bring charges against him.

Some watch­dogs think the House has gone too far in us­ing the clause to pro­tect its mem­bers in con­gres­sional cor­rup­tion cases.

Paul Or­fanedes, di­rec­tor of lit­i­ga­tion at Wash­ing­ton-based Ju­di­cial Watch, said the clause “wasn’t in­tended to make Congress a law en­force­ment free zone.”

“The House hurts its al­ready much di­min­ished cred­i­bil­ity when it ap­pears to be shield­ing mem­bers from crim­i­nal in­ves­ti­ga­tions, like it did in case of [Mr.] Jef­fer­son,” Mr. Or­fanedes said. “The pub­lic will have even less con­fi­dence in Congress than it al­ready has if the House can’t de­vise a bet­ter way to let law en­force­ment do its job when it comes to in­ves­ti­gat­ing po­lit­i­cal cor­rup­tion.”

Demo­crat tar­get: Repub­li­can Con­gress­man Rick Renzi

AS­SO­CI­ATED PRESS

For­mer Demo­cratic Louisiana con­gress­man William Jef­fer­son, right, en­ters the U.S. District Court in Alexan­dria, Va., with his wife An­drea Jef­fer­son, on June 10. Jury se­lec­tion has be­gun in Mr. Jef­fer­son’s trial on charges in­clud­ing bribery and rack­e­teer­ing.

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