Cold cash

Posted: May 26, 2006 12:05 AM
So much of the language in the Constitution has been exaggerated from its initial meaning, or else reinterpreted with ideology in mind, that there is public mystification about what it is that is truly guaranteed, or truly prohibited. The question of interpretation came up early in the week after the FBI searched the office of Rep. William Jefferson, D-La., finding evidence that the gentleman had been accepting and paying bribes and falsifying his tax returns.

Last summer, it transpires, the FBI had searched his home and found $90,000 in his freezer. The details are especially useful for tabloid exposure. If you keep $90,000 in greenbacks inside your freezer, it is reasonably guessed that you had some reason to keep them there instead of at your bank. It is possible to imagine a situation in which the freezer turned out to be the best place to put the stuff -- say, a fire threatened your apartment -- but the protagonist hasn't given this reason to his constituents, who are skeptical.

The issue was almost immediately raised that the FBI agents were exercising themselves outside their constitutional competence. This vague point has affected the thinking of those who are attracted to theoretical extrapolations on the Bill of Rights, taking its provisions to lengths that would surely have surprised the Founders. If the Constitution's rule separating church and state can be held to mean that a replica of the scene at Bethlehem cannot be constitutionally displayed on state property, then maybe Mr. Jefferson is indeed protected, giving credibility to the new Hastert-Pelosi exegesis of the Constitution.

But stare down hard at the language. The Constitution holds that lawmakers are "privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same."

That provision was intended to protect legislators from arrest for statements made in the course of their legislative duties. This has nothing to do with Mr. Jefferson's case. Which means that those who say that the FBI should not have had access to the congressman's home or office are extending that constitutional provision to the point of immunity from search.

Most Americans believe profoundly in extending to reasonable lengths the ancient premise that one's home is one's castle. For that reason the executive branch is prohibited from searching an individual's premises except when authorized to do so by a judge. Needed for success here is persuasive evidence that the citizen being searched has committed a crime. There seems to have been no question that the FBI persuasively made its case for proceeding to conduct the searches. And of course, retrospectively, the FBI's suspicions were validated.

It is tempting to frown at the lengths to which the executive branch goes, and that broad question is very much with us. Commentators on the Constitution have observed that the executive branch has acted aggressively in asserting its authority, real, latent, and perhaps not there. Mr. Bush has sought to carry out what he deems to be his responsibilities -- most glaringly, in recent weeks, through the tapping of phones in America.

It was at first explained that only those calls going from here to someone in a foreign country were being tapped, but it was soon obvious that that demarcation was not strictly observed. To do so would be foolish. If a terrorist suspect is overheard in suspicious conversation with someone in Toronto, who travels the next day to Buffalo, it is unreasonable to assume that hot interception would end.

What will happen at this point, we have been assured, is a conference between representatives of the House and Senate, and representatives of the executive branch. The idea is to formulate as precisely as possible what should be the marching orders before the executive branch dispatches policemen into congressmen's homes and offices.

At play are several forces. One is the pride people feel in their own institutions. Members of Congress are eager to assert the rights of the legislative branch, and it is correct that they should do so. But the attorney general was persuasive when he said that "the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence wherever it leads."

What the defense will plead in the case of Rep. Jefferson we cannot know for certain. But to plead the procedural point -- that the FBI had no business in his freezer -- is cartoon constitutional reductionism. Perhaps the American Civil Liberties Union will descend on the case as an excessive use of executive power. An argument could be made that the executive should never concern itself if what is at stake is merely taxes unpaid. In Great Britain it is unheard of that people should be sent to prison for underpayment of taxes. But our tradition in the matter is Puritanical, and there is nothing in the Constitution that protects a tax cheat.