Goldwater Institute: Separation of powers meant to guarantee liberty not bureaucracy

By Nick Dranias

Nancy Pelosi and other U.S. House leaders recently filed an amicus brief urging the dismissal of criminal corruption charges against Arizona Congressman Rick Renzi. They argue that the FBI unconstitutionally invaded the legislative branch and violated the separation of powers by wiretapping conversations between Renzi and his constituents regarding potential legislation. Citizens for Responsibility and Ethics in Washington, a public interest group, counters that Renzi was trading legislative favors for financial rewards, which is fair game for investigation by executive branch agencies.

The truth is that both sides have equally plausible arguments based on the U.S. Constitution's "Speech and Debate" clause and separation of powers doctrine-if the dispute is framed only as a turf battle between departments of the federal government.

To genuinely resolve constitutional questions over the Renzi investigation it will require recourse to first principles. Unfortunately, neither side adequately explains how their argument advances the primary purpose of our Republic-that of securing individual liberty. But it is not too late for the Justice Department to do so.

The Founders did not divide government into distinct legislative, executive, and judicial branches merely to dig moats around bureaucratic fiefdoms. They meant to secure liberty by diffusing power and counterbalancing opposing political ambitions. In hard cases such as this, attempting to assess the proper scope of legislative autonomy from executive branch investigations without explicitly considering the goal of preserving individual liberty drops the context of the Constitution. Interpreting constitutional provisions out of context is not much better than ignoring them altogether.

Fortunately, at last report, the Justice Department had not yet responded to the dueling amici briefs. The Department still has time to ground the Renzi corruption investigation in principles of individual liberty.

Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.