House Speaker Nancy Pelosi has suddenly discovered an important federal principle: the separation of powers. And she is eager to apply it to help avoid any potential crises when the Justice Department (part of the Executive branch) starts poking around in the affairs of members of Congress (the Legislative branch).
In principle, this isn’t a wholly terrible idea. The Constitution sets up very important balances between the three branches, with each branch having a large degree of autonomy, but still able to be checked by the others in very specific ways. And the Constitution doesn’t explicitly spell out that “the Executive Branch can have its agents harassing and arresting Legislators willy-nilly.”
In practice, federal law enforcement has done a fairly good job at balancing their charge with the limitations expressed in the Constitution. With Abscam, the FBI set up and took down a sitting U.S. Senator and five sitting Representatives. More recently, in the case of former Representative Randy “Duke” Cunningham (R-CA), the FBI managed to win a conviction. Similarly, in the case of former Representative Mark Foley (R-FL), it was largely confirmed that he had never quite managed to break the law while he was pursuing young male congressional pages.
On the other hand, there have been some cases in recent years of such investigations not going so smoothly. When the FBI wanted to search the offices of former Representative William Jefferson (D-LA), he put up such a stink, it nearly triggered a Constitutional crisis.
Currently, as the Washington Times editorial notes, there are quite a few members of Congress whose ethics are undergoing legal scrutiny. Senator Christopher Dodd (D-CT) is trying very hard not to answer questions about his relationship with Countrywide Mortgage and his tax situation in general. Representative Charles Schumer (D-NY), the powerful chairman of the Ways and Means Committee, has some serious tax questions of his own he’d like unasked. Representative John Murtha (D-PA) has certain lucrative ties with lobbyists and defense contractors. Representative Jesse Jackson (D-IL) may have had a few too many dealings with impeached former governor Rod Blagojevich (D) over who would assume Barack Obama’s Senate seat.
There are sound Constitutional principles to be used to justify Speaker Pelosi’s (D-CA) move to insulate Congress from the Justice Department. Unfortunately, they quickly fade into the facade when the record is examined: when Republicans are targeted, the process seems to work. (Cunningham is in jail, Foley is utterly disgraced.) When it comes to Democrats, the record is more complicated. (Dodd is still held in fairly good regard, Schumer and Murtha still hold powerful chairmanships that relate directly to the charges of corruption against them.)
Perhaps Madame Speaker ought to focus her attention on the miscreants over whom she has nominal authority. If she and her colleagues were a smidgen better at policing their own and cleaning up their own messes, the Justice Department wouldn’t have to step in so frequently.
