It seems that the Congress and the Department of Justice will work out their differences over the Jefferson investigation.  But the weekend opened with hard blows against the President for intervening, in an effort to calm the waters, and more of the same against the Congress for pressing the unseemly suggestion that Congress is "above the law."  The Post opined that the President had made a "bad move," and that any protections were available upon application from a federal judge.  "The President's Bad Move," Washington Post (May 27, 2006) at A24   DOJ officials were said to have threatened resignation if forced to return seized materials to Jefferson.   Dan Eggen and Peter Baker, "A Defiant Stance in Jefferson Probe," Washington Post (May 27, 2006) at A1.  Robert Turner, writing in the Wall Street Journal, scolded the Congress for its uppity-ness and counseled that the FBI be "permit[ted]…to do its job."  Robert F. Turner, "Congress Isn't Above the Law," WSJ.com Opinion Journal (May 28, 2006).

     It has been suggested here that some of the reaction so far has been the predictable expression of an underlying contempt for politicians and for politics.  The public debate so far is full of emotional utterance about "corruption," no small part of it resting on the assumption that Members of Congress, far from acting nobly, have something to hide.  Even the President, looking to settle things down, is accused of putting at risk the integrity of criminal investigations.

     And here one can see other elements of the architecture of this anti-politics:  the belief that those we can trust are really the "professionals," the ones who answer only to their specialized training and entirely independent judgment:  law enforcement personnel and judges.  The political process, particularly those in charge of it who have received, say, votes, apparently cannot police these controversies themselves, because their motives are suspect—they are self-interested.  We need arbiters standing back from the conflict, or above it, who can orchestrate resolution on the basis of neutral rules of decision, impartially applied.  We tend to accept this view because it is embedded in the narrative constructed and put forward with authority by another body of professionals of this kind—the press. 

     Why should this matter be handled so much more effectively, with so much more sensitivity to the different dimensions of the issue, by a judge than by a President or by the Congress working with the President?  It is a constitutional conflict between two branches now, it appears, prepared to strike some kind of accord that balances the perceived interests of each.  For this accord to be reached, some time was needed, and the President—who is responsible for law enforcement—merely suspended the use of the materials for the time being.  The President has a reasonably full view of the issues and particularly of the political consequences of various resolutions; a judge does not.  The President is accountable for the integrity of the investigation, democratically accountable; the judge is not.  The judge in fact approaches the question with some tools and information, but not all of them, and the decision she might render is of a particular kind, not necessarily equal to the complexity of the situation.  Yet we are comforted by the notion that a "judge," his or her thinking uncontaminated by crude political calculation, is the professional—the scrupulously fair referee—that the situation demands.  It is curious, as we observe the battles over judicial nominations, how mere confirmation transforms our expectation of former "ideologues"—some of them even cronies—carefully screened in a thoroughly political process.

     If we admire judges, we are also supposed to put our faith in law enforcement "professionals," who should be allowed to just "do their job."  One remembers similar appeals made on behalf of the likes of Ken Starr, when he was assailed regularly by the Clinton Administration lawyers (and with good reason).  But then he was political, right?  Or was not the former judge ideally suited for the professional task to which he was appointed—by other judges?  Now we have press accounts ablaze with excitement that men of principle in the Department of Justice were prepared to resign rather than yield to the instruction of their superiors, such as the President, who might have believed that he had some say in the matter.  Yes, independent law enforcement professionals, like Paul McNulty, spokesman for the House in the impeachment proceedings against Clinton; or Alberto Gonzalez, whose accession to the Attorney Generalship was an act of Presidential friendship.  Or if they are not quite independent law enforcement professionals, now they speak for them—for the trusted career prosecutors and FBI agents just "doing their jobs."

     The press has always been taken with this line of argument.  This is not surprising.  It is a view of the world compatible with the press’ place in the world.  Journalists, too, are professionals; their motives and mode of analysis cannot be suspect in the same way, for the same way, as those politicians whose positions have been acquired by glad-handing and promise-making and deal-cutting.  This is the reason why it is acceptable for the press to claim broad privileges, including protection from the normal criminal process, while it is only more of the same self-serving mischief when claimed by elected officials.  In recent months, the press has remonstrated bitterly against DOJ for suggesting that the receipt of classified national security information might be a crime under a statute seeming to so provide but dismissed as "old" and "never used."   "A Sudden Taste for the Law," New York Times (May 24, 2006).  But similar arguments by Congress, in seeking to rise "above the law," are scorned as nothing more than pure politics, made for their own benefit.  Members of Congress are politicians, unlike journalists who, like law enforcement personnel and judges, are independent professionals merely asking that they be permitted to do their jobs—apolitically.

     What then of the arguments of critics who insist that Congressional corruption is so much the issue that separation-of-powers complaints are the merely the squeals of dirty pols looking to save their own skins?  They do not mean by this only the Abramoff case, since Bill Jefferson is not connected to that scandal.  What is meant more broadly is that Congress, as a whole, is a site of execrable corruption, and it seems, as the Los Angeles Times reports, that DOJ shares this suspicion and is committing resources accordingly.

     But the Los Angeles Times acknowledges that DOJ is not here in hot pursuit of cold cash stashed in freezers, but looking to "push the limits" of criminal theories about political fundraising—about when it loses constitutional protection and becomes criminally corrupt.  Professional prosecutors, given essentially free rein by Justice, are reworking the law to suit their judgments about the line between proper and improper politics.  Law enforcement sources tell the Times that the result "is a sort of feeding frenzy of new cases—the strength of which is far from clear."  Richard B. Schmitt, "The Corruption Crackdown," Los Angeles Times (May 27, 2006).  If politicians find this disquieting, they cannot be blamed:  they cannot be faulted for objecting to the prospect of raids on their offices as law enforcement professionals "push the limits" of public corruption law, at the same time that the Executive "pushes the limits" of its constitutional authority. 

     Of course, in this conflict, law enforcement professionals seek safety in the widespread belief, one they no doubt share, that politics is corrupt, insulating them from meaningful oversight of their "feeding frenzy of new cases" or of the constitutional implications of their investigative practices.  It must matter, however, that it is in periods of political stress, as we experience such stress today, that politicians and their ways come under a particularly virulent strain of suspicion.  "Corruption" is the easy answer for unease over difficult problems or frustrations over the responsiveness or effectiveness of government.  It is a political complaint, presented as a legal charge; and this is the danger of it:  that the law will be abused and constitutional balances will be disturbed, because a lot of people are upset, even enraged, and will give up a great deal for the short-term satisfaction of seeing pain inflicted on their elected representatives.

Bob Bauer