The past week has offered the odd spectacle of Nancy Pelosi and Dennis Hastert standing shoulder to shoulder in defending a Democratic congressman’s supposed right not to have criminal investigators raid his office. On the law, I think they’re on the wrong side. As Akhil Amar (whose lecture was one of the only courses my bro and I took together) writes:
W.J. is a target of a criminal corruption investigation, and if criminally charged, he would have no more Arrest Clause protection than any of the countless other sitting Congress members who have been criminally prosecuted over the years—Dan Rostenkowski, Duke Cunningham, and Tom DeLay, to name just three. Since W.J. has no immunity from an ordinary criminal arrest, it is hard to see why he has some kind of blanket immunity from an ordinary criminal search to uncover evidence of his suspected crime. If other white-collar suspects are vulnerable to office searches, why is William Jefferson any different?
In terms of political strategy, Hastert’s move (and the zeal of Sensenbrenner et al to follow him) is noteworthy because Jefferson’s case was the only one (contra John Solomon) offering serious ammunition for the Republicans’ claim that the current crop of corruption is a bipartisan problem. Had Hastert and company wanted, with a media establishment all too eager to expound on the “everybody does it narrative,” they could have a primed a whole raft of stories this week to the effect that Democrats and Republicans both have to get their houses in order, and the only difference is that the Democrats’ house includes a refrigerator with $90,000 hidden inside. That claim is bogus (and it’s worth noting that Jefferson is as “New Democrat” as they get), but it would have gotten traction nonetheless.
So the Republican leadership could not have passed on it lightly. Apparently, they decided that a week of reinforcing the idea that Democrats are equally corrupt was worth less than a week of reinforcing the idea that members of Congress have the right not to be aggressively investigated. The fact that of the two opportunities, the Republicans chose to spend this week lying the groundwork for the idea that congressmen have special privacy rights (and seeming civic-minded for throwing a fit in defense of a Democrat) suggests that they expect a slew of additional Republican congressmen to come under investigation. And chances are they’re right.
What’s harder to explain is Nancy Pelosi’s choice to get on board with the whole exercise. Presumably, she sees in this debacle a chance to exacerbate intra-GOP tensions and reinforce a narrative of executive overreach by the Bush administration. But when it comes to dividing the party on itself over raids like this one, she can only get in the way. And when it comes to taking a stand against executive overreach, the rights of congressmen are the last place the American people want or need the Democrats to assert themselves. As Barney Frank said on the floor:
I think, in particular, for the leadership of this House, which has stood idly by while this administration has ignored the rights of citizens, to then say we have special rights as Members of Congress is wholly inappropriate.
The Jefferson case, inconvenient as it is, allows the Democratic leaders to differentiate themselves from their Republican counterparts. Pelosi can and should condemn William Jefferson in terms that Dennis Hastert will never condemn Tom DeLay. That’s because the nexus of corporate interest and political power that does so much to breed corruption in Washington is one which undergirds the modern Republican party and which, for all the efforts of some Democrats to cozy up to it, is fundamentally opposed to the long-term interests of the Democratic party.
Pelosi did the right thing by calling on William Jefferson to resign. She could drawn a further contrast by coming out strongly against Hastert’s claim of special privilege for him. Just as Hastert has more credibility defending the supposed privacy rights of a member of the opposition, Pelosi would have more credibility denying those claims when applied to a member of her own party. Instead, look for Dennis Hastert to invoke the Jefferson precedent to call on Nancy Pelosi to join him in throwing up roadblocks to a full investigation of another crooked colleague – or perhaps of Hastert himself.