Brushback Hearing

By E. J. Dionne Jr.
Friday, June 2, 2006

In baseball, the hurler intimidates the batter with a brushback pitch. In soccer, the official warns an unruly player by pulling out a yellow card.

Politicians in legal jeopardy thunder and moan, threatening prosecutors while cloaking their pressure tactics in the grand language of constitutional rights and democracy.

So don't be fooled by the hearing before the House Judiciary Committee on the Justice Department's supposed violation of congressional rights in an FBI search of Rep. William Jefferson's office in a bribery investigation.

The hearing was dominated by talk of abuses of power by long-dead monarchs and the need of the people's representatives for untrammeled communication with their constituents.

But Rep. James Sensenbrenner's committee was really sending a message as the House confronts a far-reaching corruption investigation: Nice little Justice Department you have there, Mr. Attorney General. Too bad if anything were to happen to it. Stop messing with us before we mess with you.

How else to explain this from Rep. Darrell Issa (R-Calif.): "We have the power to impeach the attorney general. Now, I'm not sure that articles of impeachment are going to come out today. I think we're a couple shakes short of a quorum for that purpose. Although I suspect members would quickly be here if it was brought by the chair."

Why would House Republicans be so concerned with Jefferson, a Democrat from Louisiana who, according to prosecutors, kept $90,000 in cash in his freezer?

One answer is high principle. The more plausible answer is that Republicans are worried that the next shoes to drop in the congressional probes will belong to Republican members. Using a Democrat's case now to protect Republican members in the future is not so much clever as transparent.

If Wisconsin's Sensenbrenner and his fellow Republicans had shown an exquisite concern with civil liberties and accountability in the past, their challenge to Attorney General Alberto Gonzales might be seen as part of a consistent libertarian sensibility.

One of the witnesses called to justify the Republicans' assault, maverick conservative legal theorist Bruce Fein, had the intellectual honesty to put the issue in a larger context. He charged that "the Bush administration has been bent on a scheme for years of reducing Congress . . . to an extra in a Cecil B. DeMille political extravaganza."

But Rep. Chris Van Hollen (D-Md.) called the committee's bluff when he noted the "number of examples of overreaching by the executive branch where there's been a total lack of oversight by this Congress." He cited such issues as torture, the treatment of detainees and enemy combatants, and data-mining operations by the National Security Agency.

"Now you've got a stampede by some members of Congress to make Capitol Hill a safe haven for hiding evidence of criminal wrongdoing," Van Hollen said in an interview yesterday. "Issues important to the American people have been totally ignored. But as soon as they come knocking on the doors of Congress, [House members] scramble to protect themselves."

According to 2005 Census Bureau estimates, there are 296,410,404 people in the United States. The Judiciary Committee is clearly concerned with the rights of 435 House members and -- give them the benefit of the doubt -- 100 senators. Someday, the committee will get around to thinking about the rights of the remaining 296,409,869 of us.

Of course it's true that the Justice Department could have shown more regard for congressional prerogatives, perhaps by informing the speaker and the minority leader in advance of the search. And blanket sweeps of congressional offices by the executive would indeed be a clear violation of the Constitution's "speech and debate" clause protecting senators and representatives from executive intimidation.

But this was no politically motivated search. The evidence indicates it was a response to Jefferson's attempts to withhold evidence. Rep. Barney Frank (D-Mass.) has rebuked leaders of both parties for their self-protective zeal. The speech-and-debate clause, he said, "should not be in any way interpreted as meaning that we as members of Congress have legal protections superior to those of the average citizen." Amen.

Here's the implication of the hearings: The current House leadership will permit the executive to claim broad privileges as long as Congress can also claim broad privileges. Such an interpretation of the "separation of powers" would bring an end to "checks and balances."

So keep an eye on the leadership of the Justice Department. Here's hoping that it resists political pressure -- whether from Congress or the White House -- and allows its prosecutors to proceed with legitimate investigations of corruption.

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