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Hastert the hippo

Posted by Richard on June 1, 2006

I’ve had a low opinion of House Speaker Denny Hastert at least since the egregious manner in which the Medicare drug bill was rammed through. Recently, I referred to him as a "bumbling fool" when he inexplicably and ahistorically objected to having a "military man" head the CIA.

But my opinion of Hastert nose-dived further when he stood side-by-side with Nancy Pelosi to denounce the FBI search of Rep. William Jefferson’s office as unconstitutional and to demand that Justice return to Jefferson the evidence of his criminal activity. At that moment, Hastert accomplished the remarkable feat of making Nancy Pelosi seem intelligent.

A broad consensus across the political spectrum has concluded that the Pelosi-Hastert constitutionality claim is groundless. Apparently, Pelosi, Hastert, and their supporters have never read the Speech or Debate Clause (Article 1, Section 6) of the Constitution. In it, the founders provided this protection to Senators and Representatives:

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. 

This protection prevents the Executive — or civil litigants, for that matter — from depriving the people of their representation or thwarting their legislative will via contrived arrests or subpoenas. But the founders clearly didn’t intend to create a privileged class — an aristocracy — of legislators who can flout the law with impunity. The very narrow nature of the protections specified by the clause, and the exceptions to even those (bolded above), make that obvious.

In fact, the Speech or Debate Clause protects only the persons of our Senators and Representatives (and only in carefully circumscribed circumstances), not their papers or property. Courts have "interpreted" the clause (i.e., redefined the plain meaning of the words) to include broad protection of all papers and documents in any way connected with their legislative work. That’s why the Justice Dept. went through a multi-stage, laborious process of having two teams uninvolved in the Jefferson investigation review each document. This process was designed to ensure that investigators got to see only those documents that were (a) not work-related, (b) relevant to the criminal investigation, and (c) covered by the warrant.

As an aside, isn’t it strange how the courts always seem to conclude that the rights of the people are actually narrower than the plain language of the Constitution suggests, but the powers and privileges of government and its officials are actually broader?

Tony Blankley, whose opinion of Haster is far more generous than mine (calling him "a decent and sensible man"), offered a vivid image of Hastert’s attempt at constitutional analysis in this case:

Watching Speaker Denny Hastert attempt to defend Congress’s separate powers, I was reminded of H.G. Wells’ criticism of Henry James’s writings. He likened it to: "a hippopotamus in a room resolved at any cost upon picking up a pea."

Was the assertion of a remarkably weak legal point (the burden of legal opinion weighs against the speaker’s legal judgment) really worth the vast and conspicuous political damage?

Congress has now elevated to high visibility the apparent new Republican constitutional principle of the right of a crooked congressman to be secure in his person, papers and effects even from reasonable searches supported by a warrant issued on probable cause.

Pejman Yousefzadeh, in a TCS column, reviewed the legal issues, relevant commentary by legal scholars, and relevant court rulings, and concluded:

Obviously, taking bribes does not constitute "an act generally done in Congress in relation to the business before it." … And taking bribes is not "within the scope of legislative acts" as defined by holdings of the Supreme Court (at least, one hopes not).

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."

In the end, reliance on the Speech and Debate Clause, fatuous comparisons between the FBI’s warrant-based search and a hypothetical search of the Oval Office by Capitol Hill police (not to mention unjustified demands for the return of Rep. Jefferson’s papers) are but fig leaves for the real issues at stake; the overzealous assertion of Congressional powers and prerogatives. …

Remember, the Republican majority in the House of Representatives staked their claim to power twelve years ago via the "Contract with America," the first article of which said that "all laws that apply to the rest of the country [should] also apply equally to the Congress."

It was a good idea back in 1994. It is a good idea now. Let’s enforce it.

Quin Hillyer, whose opinion of Hastert is more in line with mine, also recalled the Contract with America — and how Hastert gutted many of its key ethics and accountability provisions in 2003. Hillyer deplored Hastert’s arrogance, lack of principle, and political tone-deafness, and said he should step aside next term as Speaker:

He should do so for reasons both principled and purely political. He should do so because, in practical terms, his effectiveness is reaching — or probably has already reached — an end.

And the recent embarrassment of his wild over-reaction to the FBI’s search of Rep. William Jefferson’s office is merely the 100-pound load that, combined with tons of ethical dead-weight, broke the elephant’s back.

The first reason Hastert should make this his last term as Speaker is to fulfill a promise he and his colleagues made when Republicans first took a House majority in 1995. That promise, abandoned as part of a larger fit of House GOP hubris in early 2003, was that the Speaker would be limited to four consecutive terms in that particular leadership post.

HIllyer described how, in myriad ways and with Hastert leading the way, the Congressional GOP has betrayed the principles and promises of the Contract with America, and then continued:

All of this is only background, mind you, to explain just how long, and how pervasively, Hastert has exhibited the arrogance of power that leaves him clueless both as to ethical concerns and as to the political damage such arrogance can cause to his own party. …

Now comes Speaker Hastert, at the very first moment where House Republicans can push back against an image of corruption, to step all over both the law and especially the politics in order to assert a highly dubious congressional privilege. As if Congress doesn’t already look privileged enough.

Sen. John Warner was entirely right, in contradistinction to Hastert, when he said that "Congress should not set itself apart from citizens. We should be treated alike when it comes to criminal codes." That bit of wisdom should be familiar to Hastert and others who signed the Republican Contract with America in 1994: As has been widely noted, one of the most popular, applause-generating parts of the Contract was its pledge to, "FIRST, require all laws that apply to the rest of the country also apply equally to the Congress."

The inviolability of one’s own office space against a duly and carefully executed search warrant is far from being a law generally applicable to the "rest of the country."


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