FBI Search of a Congressman's Office v. Separation of Powers?
by Last Night in Little Rock
Over the weekend, the FBI searched the Congressional office of Rep. William Jefferson, and Republicans in the House are crying "foul" and "separation of powers." See House Leaders Question F.B.I. Search on NYTimes.com today.
As readers of this website and FourthAmendment.com have undoubtedly noticed, I tend to lean toward the citizen on Fourth Amendment claims. I also read the cases everyday, and I know the trends and what the courts can do and not do with particular facts. I am also a Fourth Amendment realist seeking to balance individual privacy and government need.
In Rep. Jefferson's case, however, "separation of powers" just won't cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that. Ask former Rep. Duke Cunningham.
Remember the Republican House members clamoring for Clinton's Impeachment saying that "we are a government of laws, not of men," and "no man is above the law"? Now they are singing a different tune because it is one of their own?
Let me use a Republican refrain to the NSA spying critics: "If you don't have anything to hide, what are you worried about?"
[cross-posted to www.fourthamendment.com]
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