'Culture of corruption'? Or just plain dumb?

A few months ago I made a case for heeding the plain language of the U.S. Constitution instead of allowing courts and special interests to insert their wish list of rights, duties, obligations and cotton candy into the document.

That's because I have a very high regard for the Constitution - and the framers who gave it to us - and a very low regard for the average politician's ability to avoid the siren call of self-interest.

Last week, we got a stunning reminder of just how easy it is to hijack the Constitution for political purposes, and we have been granted once more an opportunity to demand that the government obey the simple language of the Constitution instead of stretching it like silly putty to meet the needs of expediency. The Constitution is flexible, but it should not be elastic.

But don't tell that to the leaders of Congress.

When the FBI raided the congressional offices of William Jefferson, a Louisiana Democrat who is under investigation for allegedly accepting bribes, it was as if the Romans were once again entering the Holy of Holies at King Solomon's Temple in Jerusalem. The outraged leaders of the Capitol stood aghast as their "privileges" were trampled by the executive branch.

Former House speaker Newt Gingrich called the raid "the most blatant violation of the constitutional separation of powers in my lifetime."

The current speaker, Dennis Hastert, R-Ill., said, "Insofar as I am aware, since the founding of our republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this separation of powers line, in order to successfully prosecute corruption by members of Congress."

That all sounds good. Anybody with a fifth-grade education knows that separation of powers is a fundamental cornerstone of our form of government.

But based on the statements made so far, you have to wonder whether our leaders of Congress, past and present, ever got past fifth grade at all.

First of all, to keep it simple enough for even congresspeople to understand, separation of powers works like this: The legislative branch makes the laws, the judicial branch interprets them, the executive branch enforces them.

But as of last week, it got changed to this: The legislative branch makes the laws, interprets them, and tells the executive branch not to enforce them if a member of Congress got his hand caught in the cookie jar.

Montesquieu, no doubt, is turning over in his moldy grave. It was that French political philosopher who developed the modern theory of separation of powers, and the accompanying theory of checks and balances.

The idea wasn't to create a Congress with the powers of a monarchy, but rather to create a government where each branch could limit the powers of the other two branches. Thus, Congress must submit to the legitimate powers of the executive branch and the judiciary - not hold itself above the law.

The separation of powers, after all, is not a shield for wrong-doing. In fact, it is the very opposite. It is a guarantee of the ability to hold wrong-doers accountable.

President Nixon learned to his chagrin that just being president did not mean he could avoid the subpoena power of the courts. His aides and deputies learned that being part of the executive branch did not mean they could stay out of jail. President Clinton learned that he could not lie to a court and then tell the Congress it was none of their business.

In these cases, senators and representatives have powerfully orated on the sanctity of our system, where no man is above the law. They have warned presidents to behave or be chastised.

But now these same senators, in defense of a scoundrel, have rewritten the Constitution to protect one of their own. Instead of standing with the American people in favor of integrity and decency, the leaders of Congress have tried to mislead the public into granting them rights which they have never had before, and never should have.

Don't take my word for it. Read the Constitution for yourself. Print out a copy from the Internet (www.usconstitution.net/const.txt is one of many sites where it may be downloaded) and take it with you wherever you go. Read it every minute from now until the day you die, and you will never find one word that exempts members of Congress from the principle that no man is above the law.

Here's what you will actually find - the plain language of Article 1, Section 6:

"The senators and representatives … 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."

That, in sum, is the entire privilege granted to members of Congress in protection against an overzealous executive branch.

Please note that there is no wholesale exclusion of searches and seizures of documents in congressional offices. Please note also that it is entirely permissible for the FBI to enter the Capitol and actually arrest a senator on the floor of the Senate if he is charged with a felony. Please note also that bribery is a felony.

So Rep. William Jefferson can be arrested by the executive branch on the floor of the House for bribery, but - according to Hastert and Gingrich - his offices cannot be searched with a duly sworn and executed search warrant, even when he refused to honor a prior grand jury subpoena for the same documents.

Huh? How so?

The shaky underpinnings of the argument hinge on that "speech and debate" clause of the Constitution. It seems that those who are trying to make Congress safe for bribery think that documents prepared in the line of duty by a congressman or his staff must be protected from prying eyes, even if the eyes have a warrant.

But the plain language of the Constitution doesn't say that. It says that a congressman may say anything he wants in official speech and debate and shall not be charged with any crime as a result, nor even be questioned about it. That is a fundamental doctrine of fair and open debate and guarantees that Congress shall not be intimidated by the executive with the threat of arrest for simply arguing against a presidential policy. The framers were brilliant to include that passage, and did so because of their experience with a crown that did not respect open legislative debate.

It is the invisible asterisk in Article 1, Section 6, which concerns me. Because it must be in the emanations of the invisible writing next to that invisible asterisk where the congressional leaders have found their penumbral protection from legal investigation of criminal wrongdoing.

Since the ink is invisible, we will have to ask Hastert and Gingrich whether members of Congress may hide evidence of all crimes in their offices or just crimes done on the job. Does the protection extend to evidence against members of their family? What about their friends? Is it possible that congressmen can start making a little extra money on the side legally by advertising their services as hiders of evidence? After all, if the FBI is forbidden to search on Capitol Hill no matter what crime is committed, then why not turn that to advantage. Heck, it may ultimately make bribery old-fashioned and irrelevant. Skilling and Lay probably would have paid big-time to get all the Enron corporate records safely shoved into congressional offices.

Thanks to a little invisible ink in the Constitution and the ever-increasing gullibility of the American public, this could actually be the best scam since diplomatic immunity!