Glenn Reynolds, the Blogfather, has an excellent post about the separation of powers between the three branches of the federal government and the latest scandal: the searching of the offices of Rep. William Jefferson (D-LA).

MORE ON CONGRESS AND THE SEPARATION OF POWERS: What’s frustrating in these discussions is the failure to distinguish between what the law should be in somebody’s opinion, and what it actually is, based on the Constitution and the caselaw. This entry on Congressional immunity from Jerry Pournelle — a smart guy, but no lawyer — is a good example:

Just as each House is the judge of the qualification of its members, each House is responsible for enforcement of ethics and criminal actions of members. The Houses have sufficient authority to do as they will in those cases.

When you bring the executive power into direct enforcement against sitting Members of either house of Congress, you end the separation of powers. It is easy for the executive to fake ‘evidence’ if it chooses. Once the executive power can intimidate sitting Members of Congress, you have an entirely different kind of government.

Now it is required that the Houses inquire into the criminal actions of Members. But that is done by their own agents, or at the request of the Speaker or President pro tem; not by the executive authority.

Now you may think that this is a good idea — I don’t, but Pournelle apparently does — but it is not now, nor has it ever been, the law. In fact, with the sole exception of impeachment (which doesn’t run against members of Congress), the Congress cannot investigate or try offenses, and impeachment is carefully distinguished from criminal prosecution in the Constitution. The Constitution’s prohibition of Bills of Attainder, in fact, explicitly forbids Congress dealing with criminal matters.

Well worth reading the whole thing. Something that he doesn’t bring up in his article is a Article 1 Section 6 of the Constitution as it deals with the Legislature:

They 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.

Rep. Patrick Kennedy (D-RI) tried to invoke the “Speech or Debate” clause of the Constitution even though the all important vote he said he was headed to happened hours earlier. Rep. Jefferson has no leg to stand on because he is under investigation for a felony, and that makes him fair game under the Constitution. This goes directly against the joint statement by political odd-fellows, Speaker of the House J. Dennis Hastert (R-IL) and Democratic Leader Nancy Pelosi (D-CA).

No person is above the law, neither the one being investigated nor those conducting the investigation.

The Justice Department was wrong to seize records from Congressman Jefferson’s office in violation of the Constitutional principle of Separation of Powers, the Speech or Debate Clause of the Constitution, and the practice of the last 219 years. These constitutional principles were not designed by the Founding Fathers to place anyone above the law. Rather, they were designed to protect the Congress and the American people from abuses of power, and those principles deserve to be vigorously defended.

There is something sadly pathetic about watching two grown adults who swore to uphold the Constitution prove that they just don’t understand it.

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