At the start of his famous poem Mending Wall, Robert Frost wrote, “Something there is that doesn’t love a wall.” When it comes to the Justice Department, that statement is particularly true this month. In the prosecution of former congressman Aaron Schock (R-Ill.), the Justice Department did not simply ignore the wall of separation between the legislative and executive branches, it bulldozed it.
In its invitation of possible fraud by Schock, the FBI enlisted a staff member to record conversations in the office, rummage through files and paperwork, and remove documents for investigators and prosecutors to search of any wrongdoing. It is an egregious violation of the protections afforded members of Congress and, if left unaddressed, would constitute extremely dangerous precedent for our constitutional system.
{mosads}Schock became the subject of ridicule (including from this writer) for decorating his congressional office in the style of Downton Abbey, the series featuring the daily life of a haughty English family. Schock’s taste in staff members appears as bad as his taste in interior decorating.
While still unidentified, Bryan Rudolph, Schock’s former district manager, is believed to be the staff member who volunteered to serve as a secret agent of the Justice Department in looking for evidence of crime. As Schock’s district office manager, Rudolph allegedly recorded conversations with other staffers and rummaged through office files and emails. He copied material and taped conversations considered protected by both attorney-client privilege and constitutional protections.
Ultimately, Schock was indicted on charges that he misspent government and campaign money for his personal benefit. Putting the merits of those allegations aside, the means used in this case were shocking and unprecedented in targeting the office of a member of Congress and rifling through papers and communications. What is equally disturbing is that the Justice Department was previously chastised by the court for violating these very same protections in the investigation of a member of Congress.
In 2005, the Justice Department investigated former Rep. William Jefferson (D-La.) for bribery and other crimes. The FBI raided Jefferson’s congressional office under a search warrant and took away an array of files and documents. I testified at the congressional hearing on the raid and said at the time that it was a flagrant violation of the protections afforded members under Article I, including the protections of the “Speech and Debate Clause.”
While the Justice Department insisted that it employed a “filter team” to review documents taken from the office, such post hoc measures does not change the egregious (and entirely unnecessary) raid on a congressional office. Ultimately, the D.C. Circuit agreed and, in United States v. Rayburn House Office Building Room 2113, ruled unanimously that the Justice Department violated the constitution. The court ruled that “the Congressman is entitled … to the return of all materials (including copies) that are privileged legislative materials under the Speech or Debate Clause. Where the Clause applies its protection is absolute.”
Notably, in Gravel v. United States, the Court also ruled in 1972 that the protections of the Speech and Debate Clause extend to congressional aides. The Justice Department under the Obama administration responded to these two cases by making a congressional aide a virtual walking surveillance device for a fishing expedition in a congressional office. They took these steps in a case involving disputes over what are official and what are personal expenses for members.
Investigators spent 18 months looking for criminality but ultimately found violations of reporting and routine expenditure reports. This effort included the recording of conversations with staff who were represented by counsel and sifting through congressional material. The aide was given detailed instructions on what to remove from the office. Yet, when one investigator was asked for her cell phone to review those instructions, she said that she had “deactivated” the phone and now could not remember the password.
The Justice Department has again claimed that it used a “filter team” despite the fact that that defense failed in the Jefferson case. (The Justice Department has also insisted that it will not rely on the evidence taken from the office, though it is not clear how it may have influenced the investigation. If true, the Justice Department flagrantly and knowingly violated the Constitution and achieved nothing).
Even outside of Congress, the probable cause basis and the scope of these searches would be highly questionable under the fourth, fifth, and sixth amendments. Placed into the protected area of a congressional office, these searches are chilling examples of a total disregard of existing precedent and constitutional values.
The protection for legislative offices is one of the oldest constitutional values embraced by the Framers. They learned of its necessity from the British Crown. As early as 1541, the Parliament was invoking the protections after years of abuse at the hands of the Tudor and Stuart monarchs. For more than 200 years, presidents respected that tradition until the raid in the Jefferson case. The courts have however held the line of separation between the branches. Despite that history and case authority, the Justice Department has again searched a congressional office with utter impunity.
However, this is more important than a member with loose accounting practices and a haughty taste in design. Madison believed that the separation of powers would allow “ambition to counteract ambition.” But the only ambition shown has come from a previously unknown prosecutor in Springfield, Illinois, assistant U.S. attorney Timothy Bass. He appears to have an impressive abundance of prosecutorial zeal and an equally impressive lack of constitutional values.
There were ample places where Bass had full license to look for evidence, and apparently those unprotected areas yielded the actual evidence to be presented in this case. Had he stuck to those areas, this would be a small fraud case. Instead, Bass went to the one place where he was not permitted like a man who wanted to be a big game hunter but lacked the energy for the wild, so he shot an elephant in the local zoo.
It is certainly true that there is something in presidents “that doesn’t love a wall.” However, as the poem Mending Wall also noted, “good fences make good neighbors.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has testified multiple times before Congress on the separation of powers and other constitutional guarantees.
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