Congress, Jefferson, and Civil Rights

Published on June 3, 2006 By Gideon MacLeish In Politics

In the wake of the William Jefferson scandal, Nancy Pelosi has led the charge against the way the FBI executed a search warrant on Congressman Jefferson's office. And the problems she has with the investigation are quite legitimate problems. She is correct in demanding that Jefferson's rights as a citizen be preserved in the investigation.

Now if we can just get her to extend the same rights to American citizens, we'd be fine. She and many others in Congress have been quite reluctant to allow the rights to Americans in certain other investigations, and their voting records have been inconsistent. And this is not a problem exclusive to Democrats or Republicans; it permeates both parties pretty deeply. Going down the list of our rights, it's easy to see that each party has been as zealous in the infringement of certain rights as they have in the defense of others. And just about every elected official has played some part, at some time.

William Jefferson certainly should have been allowed to be present, or at least, to have his attorneys present, while his offices were searched. But until Congress is willing to reaffirm those rights for every American citizen, they have no right demanding them for themselves.

Comments

Dr Guy

on Jun 03, 2006

You are correct. That right does not exist. Once a search warrant is approved, the right to have you and your attorney present only exists if you are in the right place at the right time. They do not wait for you to be ready.

And in that, I do agree. There is too much potential for abuse if you had the right to be present (just never show up!) and have your attorney present (just make sure he never shows up).

What I find most amusing about this whole kerfuffle is that it has split both parties. James Carville is on the side of the FBI, and Hastert on the side of Cold Cash Jefferson.

bakerstreet

on Jun 03, 2006

Could you explain the "been present" part of your blog? I wasn't aware that there was any constitutional right for the homeowner to be present when the home is searched. Once the order to search the home is granted by the courts, I didn't think the police had to wait around for such. They most certainly don't, anyway.

Is this a matter of interpretation, or is there some fact that everyone has ignored for decades? Was it because of a certain kind of warrant? I find it hard to believe that a murderer on the run can't have his house searched unless he arranges from his unknown location for a lawyer to be present.

I don't believe that people should be able to block and hamper police in the execution of a legal search, and you'll have to convince me otherwise. I appreciate that you say there needs to be a finer standard enacted by congress, but I'd like to know why you think that need is there in the first place.

Gideon MacLeish

on Jun 03, 2006

Is this a matter of interpretation, or is there some fact that everyone has ignored for decades? Was it because of a certain kind of warrant? I find it hard to believe that a murderer on the run can't have his house searched unless he arranges from his unknown location for a lawyer to be present.

It's basically an interpretation; eg, that the only way to ensure a search warrant is properly executed is to have a representative present. It is not expressly stated in the Constitution. And it is commonly applied to citizens if they specifically reserve those rights (eg, if I get a lawyer and contest the warrant based on the way it was executed). But if you don't know to contest it, you're pretty much up s&*^ creek.

bakerstreet

on Jun 03, 2006

But don't you see how that could be abused? Jefferson's lawyer would have immediately held it up. In the meantime Jefferson would have gone on doing "business" there on the grounds that they were keeping him from doing his elected duties. Do you really think there would have been any evidence left?

It is my understanding that Jefferson had stonewalled for months the subpeona for these documents. Which do you think would bring a worse penalty, the destruction of documents that may or may not have ever been there, or accepting huge bribes?

No, I think it is imperative that the law is used to preserve the premesis in the case of a legitimately issued warrant. I understand that you are always going to lean toward our rights, and I appreciate that, but part of our rights is having the government we pay to do their job enact their responsibilities to the best of their ability.

We already see too many self-confessed predators in our society go free because of legal machinations. The idea that people are somehow owed to be farwarned and able to hamper a legitimate investigation seems to me to be an infringement of the right of society as a whole to have efficient law enforcement.

Otherwise people like Jefferson would cut their losses and accept the punishment for destroying evidence to keep from facing the bulk of charges the police would no longer be able to prove.

Gideon MacLeish

on Jun 03, 2006

Baker,

First of all, I would assume that the standard of being able to have a lawyer present during the execution of a search warrant is based on Supreme Court decisions. I'm not sure on that one, however (little help here, anyone?) but if I were to venture a guess, it is an extension of the right to have a lawyer present during questioning. Certainly, it does carry with it some risks, but most Constitutional protections do. That doesn't change their validity.

All I am asking for is a consistent standard. If Congresspersons wish to preserve the standard for William Jefferson, they need to preserve it for the rest of us as well. And while I'm not sure, I'm inclined to think the FBI's search was properly executed. There aren't many people outside of Capitol Hill picking up the baton on this one.

bakerstreet

on Jun 03, 2006

It's my understanding that this issue is mainly one of separation of powers. The vibe I get is that this is the executive branch being able to flex muscle through the justice department that the congress can't combat. That, to me, though, ignores the fact that the constitutional check here should be coming from the judicial branch.

I think this is just the Congressmen being annoyed that they don't have more power than they are legitimately owed. They want when one of them is found to be doing something wrong to set up their committees and subcommittees and debate it for months on end, and have the rest of the world butt out.

That's too much power, though. When someone is suspected of committing a crime, it shouldn't matter who they are. If someone saw me committing an illegal act on videotape, no one would be saying I should be there to approve how my house is searched.

It's petty and abusive, I think, for the Congress to keep pretending they are their own little government island. They have taken their responsibilities for approving appointments and overriding the President's suggestions to an extreme and now believe that it is unfair for anyone but the courts to be able to balance their power. That isn't how it works.

Dr Guy

on Jun 03, 2006

But they have contested bad searches and won. Again it comes down to "ignorance of the law". To mandate a representative be there means that all you have to do is stay away and get a crony to destroy any evidence. Thus negating the effect of the search warrant. Sorry, on this I will not agree. The potential for abuse, by the guilty is too great!

Gideon MacLeish

on Jun 04, 2006

Honestly, Baker, I don't know that having an attorney present during the execution of a search warrant is a right the founding fathers necessarily meant to protect. But, from my understanding, at least, the courts have historically ruled differently (the sixth amendment would be my guess as to the rationale for their decision). My main issue is that I am sick of Congress defending these rights for SOME of their own (they really didn't probe into whether Delay's investigation was properly executed, now, did they?) while having no interest in defending them for the average American citizen.

bakerstreet

on Jun 04, 2006

Well, like I said, though, the issue here isn't our right to privacy and due process. They are up in arms about separation of powers. Since we aren't the legislative branch, I guess we don't have the same right that they are trying to defend.

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