"Duke" Cunningham was caught in corruption of the unambiguous kind, and the punishment he faces is rightly severe.  In these cases, contrition is expected, even if its avowal is not taken too seriously; and Cunningham offered his version, sniffling on the occasion of his plea about how it pained him to even think about his betrayals of those, family and fellow-countryman, who had placed their trust in him.

       It appears that he also wore a wire, cooperating with the government in the investigation of others, including possibly other Members of Congress.  He was, so it is popular to say, "giving something back" by aiding the Department of Justice in collecting evidence of other wrongdoing more difficult to obtain without the assistance of a Member of Congress wearing a recording device.

       Critics of the Executive Branch’s imperious proclamation of its own powers might reconsider their acceptance, maybe even their glee, that an elected representative, still in office, would become a wired agent of a DOJ investigation.  That Cunningham should answer to the law like any other citizen is not in doubt.  Like others in his disgraced position, Cunningham is also required to give truthful evidence in his possession about other crimes, including but not limited to his own.  These obligations, binding on all citizens, do not implicate in any troubling way the relationship between the two branches of Government.  The same cannot be said of a sitting Member’s compelled service to the Executive Branch as an undercover informant, scouring for evidence under the cloak of the continued performance of official duties.

       It might seem acceptable that this is done, so long as a crime might be uncovered.  There are, however, other ways of making a case, and this is not the only one.  Transforming a Member into a Manchurian Congressman, under the control of investigators, certainly threatens the relationship between the legislature and the Executive Branch, which is one of some balance and distance and maintained only with difficulty. 

     Other Members, aware of this development, cannot fail to be affected by it:  the Executive Branch holds the upper hand, a heavy hand, and it can derive the benefit of it in other dealings where the resolute independent-mindedness of the legislature is needed.  Roll Call’s Paul Kane and John Bresnahan report this morning that the Department’s Public Integrity Section is now committed, in the pursuit of political corruption as one of its priorities, to the use of "increased training in undercover and surveillance techniques for investigators."  Paul Kane and John Bresnahan, "New Tools, Attitude Brought to Probes," Roll Call (Jan. 9, 2005).  This story will be read and its significance absorbed on Capitol Hill.

       Not too long ago, in another scandal over the "House bank," the Executive Branch conducted an investigation into bad checks cashed or honored at the bank for large numbers of Members.  The Department chose as "special counsel" a former Court of Appeals Judge, Malcolm Wilkey, commissioned to conduct an extensive review of the records, to determine which cases might merit further inquiry, and issue "letters" closing out the case for Members cleared of any potential criminal exposure.  This was an awkward procedure, and for weeks, Members would anxiously ask one another, like college applicants in mid-April, whether he or she had received the exculpatory "clearance" letter. 

     Stuart Taylor, writing at the time for the New Republic, described the process as "an affront to the constitutional status of the House," and as a mark of "gross insensitivity toward the co-equal status of the legislative branch."  Stuart Taylor, Jr., "The Bank Dick," New Republic (June 8, l992) at 20-21.  In the end, however, it was at least a procedure, transparently established, and it served to resolve the questions looming over large numbers of Members.

       The Cunningham wire is not, as reported, a special procedure.  It is the importation of a standard but aggressive investigative technique into a sphere where it arguably does not belong and where it can do damage, setting a precedent that the legislature should not accept lightly.  In the Cunningham case, the matters under investigation may be of the most ordinary kind, and it would be easy to see, for that reason, little harm and much benefit in it.  But some who have been critical of this Administration’s claims about and uses of its police powers should not assume that any prospect of abuse is far-fetched. 

     Corruption comes in various forms, and, in a very meaningful sense, Congress is more corrupt, not less, if its Members can be pressured to work undercover for the Department of Justice.

Bob Bauer