Thursday, June 08, 2006

Googling my friends: Rachel Barkow

Funny what you turn up when you want to see what your friends are up to.

Below is an article from the Wall Street Journal that includes an interview with an old high-school chum and NYU professor, Rachel Barkow. I said in this post that I thought something was fishy with the general reaction to the raid on Jefferson's House office. Seems she thinks they're reaching a bit.

Q&A: Balance of Powers May 26, 2006 8:33 a.m.
The FBI's weekend search of the House office of a Louisiana Democrat as part of a bribery probe
has prompted outcries from legislators who said the raid overstepped constitutional boundaries. William Jefferson, the congressman under FBI scrutiny, pledged to stay in the job, as representatives drafted a resolution
frowning on the raid.
Rachel Barkow, who studies separation of powers as an associate professor at NYU School of Law, spoke with's Matt Phillips about the underlying constitutional issues.
What is this congressional outcry all about?
Congressmen complain that the search by the FBI -- a part of the government's executive branch, which is overseen by the president -- oversteps the executive branch's traditional role. The legislators cite the speech and debate clause of the Constitution
(Article I, Section 6). The idea behind that clause is that what legislators do as part of their official duties as members of Congress -- such as voting and making speeches from the floor -- is protected from interference from other branches.
It's also possible, Ms. Barkow says, that congressional leaders might be relying on an argument that stems from structure set up in the Constitution, which separates the three branches, executive, legislative and judicial, so that they don't interfere with each others' functions.
The Constitution has a pretty common-sense structure, she says. "What we don't
protect [legislators] from … is the commission of crimes. They're subjected to
the criminal process just like everyone else."
What do you make of the arguments from members of Congress?
"They're reading [the speech and debate clause] very broadly, more broadly than I think is even remotely justifiable," she says. There have been other cases where members of Congress have been subjected to criminal process for things that take place outside of their legislative duties; Ms. Barkow says she doesn't see any reason why a search warrant couldn't be executed on a congressional office.
What about the argument that this FBI raid represents an extension of the power of the executive branch?
The FBI is an arm of the executive branch. But the warrant was approved through the courts, part of the judiciary branch. "It's not unilateral executive action. It was done with approval of the judiciary in so far as they had to get a warrant," Ms.
Barkow says.
According to news reports, this is the first time this has happened in the 219-year history of the Congress. Why is that?
"I think that just because it hasn't happened before doesn't, by that fact, make it unlawful in this case," Ms. Barkow says. There have been instances where different branches have come to loggerheads over separation of powers and criminal investigations.
But Ms. Barkow says it is more common for representatives of the different branches to work things out politically, through a sort of truce, rather than through the courts. More recently some cases have been resolved by the courts, both in the Nixon era and during the Clinton administration.
Ms. Barkow says it seems these issues have been moving more toward the courts for resolution. "I think even the branches of government have become more litigious than they were in the past." But the No. 1 reason this doesn't come up very often, she says, is that representatives actually are complying with the criminal laws.
What's the next step in this conflict?
On Thursday afternoon, Rep. Jefferson filed a motion asking U.S. District Judge Thomas Hogan -- the judge who issued the warrant authorizing the search -- to order the FBI to return all of the documents taken from his office. Ms. Barkow also expects Rep. Jefferson to file a challenge to the evidence gathered from the search. "He can just challenge it in the course of his own criminal prosecution."

She's smart.

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