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May 24, 2006

Special Report Roundtable - May 24

FOX News Special Report With Brit Hume

(BEGIN VIDEO CLIP)

DENNIS HASTERT, (R) IL: We are not trying to protect any individual, but we want to protect the House as far as the Constitution and we think those materials ought to be returned.

ALBERTO GONZALES, ATTORNEY GENERAL: The department has conducted similar searches in the past, including the chambers of federal judges and the private residences of members of Congress. And we believe our actions were lawful and necessary under these very unique circumstances.

(END VIDEO CLIP)

HUME: And said Paul McNolte (ph), the very unique circumstances he called them is the search of Congressman William Jefferson of Louisiana's congressional offices here in Washington this past weekend including the fact that the material sought was subpoenaed from Congressman Jefferson for quite some time and he declined to turn them over or some would say refused to turn them over.

Speaker Hastert, meanwhile, joined by House Democratic leader Pelosi. They are both now saying that not only should the materials be returned that were obtained by the FBI in its bribery investigation but the people who took them should stop looking at them. Analytical observations on all this now, from Fred Barnes, executive editor of "The Weekly Standard," Mort Kondracke, executive editor of "Roll Call" and Nina Easton, Washington bureau chief of "Fortune" magazine, Fox News contributors all.

I have a question. They keep talking about the 219-year history of our country has been violated here by this search. The separation of powers. And the speech and debate clause of the Constitution. Can someone help me out with what it is in the speech and debate clause - there you see it in front of you - that forbids this. "Senators and representatives in all cases except treason, felony and breach of the peace be privileged from arrest during their attendance at the session of their respective houses," and it goes on to say "and in going to and returning from the same and for any speech or debate in either house, they shall not be questioned in any other place."

This is a subpoena in a criminal investigation. What's it got to do with that? Please explain.

MORT KONDRACKE, "ROLL CALL": OK. For one thing, it's precedent-breaking. There's never been a raid like this on the premises in the House of Representatives or the Congress before. Secondly .

HUME: A raid or a search?

KONDRACKE: A search. Secondly, you've got FBI men rummaging around in a congressman's office, deciding on their own hook what is legislative business which arguably is protected under the speech and debate clause and what is not, and it seems to me that under those circumstances, what could have happened here is that the Justice Department could have gotten Jefferson cited for contempt for failing to comply with a subpoena. That that would be a way of forcing him to release this material on his own instead of .

HUME: So you think this is an unconstitutional search?

KONDRACKE: I think -- Fred laughs at this and thinks this is traveling travel in an HOV lane. I don't think so. This is a case and I like end it last night to U.S. vs. Nixon, where President Nixon was asserting executive privilege over materials and he lost and he lost. And I think probably Jefferson would lose in this case.

HUME: So you don't think it's unconstitutional?

KONDRACKE: I don't think it's unconstitutional but it is important enough and it clearly is important enough to members of Congress and the leaders of Congress to have it tested in the U.S. Supreme Court.

HUME: What do you think?

NINA EASTON, "FORTUNE": This is clearly precedent where the Justice Department has not done this because of fears this kind of power could be used by the executive branch to .

HUME: But they raided .

EASTON: So there was clearly -- they've investigated members of Congress. They've investigated their homes. They've arrested members of Congress, but this separation .

HUME: We can agree they've never done this before. They have -- I can remember cases in which judges' chambers have been searched which would seem to raise exactly the same constitutional question. It's one of the branch of government going into the offices of a member of another branch. I don't recall much outrage on Capitol Hill. I think their ox wasn't gored. What about this, Fred?

FRED BARNES, "WEEKLY STANDARD": You show what the speech and debate clause says and when a felony's involved, that's an exception. Yet Congressman Jefferson in his court case against the FBI claims an absolute constitutional privilege under the speech and debate clause. We just read the speech and debate clause, it doesn't give him absolute immunity at all. That's ridiculous.

HUME: It seems to be about .

BARNES: Why Hastert has gotten in this, I have no idea. And besides, Mort was wrong about the one thing. The FBI agents at the scene was not deciding. They take it back seat to this filter team of people that are not involved in the case. Of course they are FBI agents.

KONDRACKE: They are still agents of the executive branch.

BARNES: Of course they are. That is what the Justice Department is. They're the prosecutors in this case. They take it back and they decide whether it is some document they should have or shouldn't be examining under the speech and debate clause.

Even more ridiculous from this, and that's hard to come by because their claims are ridiculous is Nancy Pelosi saying that William Jefferson now should be, yes, step down from the House Ways and Means Committee.

KONDRACKE: If that's .

BARNES: Look. , look, if she thinks -- if there's a serious crime involved and the most serious crime that a congressman can commit in his duties is selling his voters' influence, that's what he's accused of doing, two people have pleaded guilty to being a part of a scheme to bribe him, so you remove him from the committee. Well, what if he's actually -- then does he have to leave Congress?

KONDRACKE: Actually, just a second. That's not the only penalty that he would suffer.

BARNES: The only one she's asked for.

KONDRACKE: So far.

HUME: He hasn't been convicted of anything.

KONDRACKE: He hasn't even been indicted for anything. If he .

BARNES: These are the people who demanded Tom DeLay quit Congress.

KONDRACKE: When he was indicted, he had to step down. Theoretically, the parallel would be that he would not have to step down from his committee unless he were indicted. She's advancing the case.

HUME: When we come back with our panel we'll talk about where the Senate immigration bill is heading next and what House members think of it.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REP. TOM DELAY, (R) TX: I think you can come up with a very strong package that protects our borders and enforces our laws and a strong temporary worker program. I think that's what will ultimately come out. But if the Senate or the president insists on an amnesty-type path to citizenship, it's a non-starter and you won't get a bill.

(END VIDEOTAPE)

HUME: Tom DeLay won't be around the House much longer as most of you know, but he spoke for a lot of House Republicans today when he said a bill that looks like the Senate bill would be in trouble in the House. The question to the panel is, is the Senate bill not as far toward the House version as we may have thought?

EASTON: I think one of the biggest dangers to the Senate bill are the dissenting senators really taking to the airwaves this week. Senator George Allen, prospective presidential candidate coming out today saying that we shouldn't be rewarding illegal behavior. Jeff Sessions of Alabama saying this is the worst legislation he's ever seen.

HUME: But the bill has been toughened.

EASTON: It has been toughened but what was interesting about what Allen said, OK, maybe the House is not going to agree. Maybe what we're going to have to do is let us -- leave the legislation alone and let's strengthen border security by appropriations.

HUME: But Senator Allen and company don't command a majority in the Senate at the moment, do they?

EASTON: No, but what I'm saying they're giving heft in the media to the House conservatives.

KONDRACKE: Look, this bill is going to pass. The Senate bill is going to pass. It is a quote, unquote, amnesty bill, it's not an amnesty bill, it's an earned citizenship. It's a guest worker bill, basically what the president wants.

HUME: What else is?

KONDRACKE: It's also border security and it's also toughening the employer sanctions but it's a comprehensive bill.

Now, what's very interesting is does the bill in the Senate get a majority of the Republican vote? It could. It very well could. It certainly will get a majority of the Democrats. A big majority of the Democrats coming out with maybe 65 or 70 votes. It seems to me that that puts pressure on the House.

In the House, Dennis Hastert has said he will not bring up a bill, a conference report, that does not have majority support among Republicans. That is something that the president is going to have to talk him out of because the .

BARNES: What do you mean talk him out of it? Because they have not set that as a hard and fast rule.

KONDRACKE: They've said it was a rule.

BARNES: No they haven't. They haven't. Specifically they have not. I checked on it after you did.

The truth is, they would like to have that. It makes it better. They don't want to pass a bill that has possibly a majority of Republicans voting against it. But it may wind up doing that. The biggest problem you can see from DeLay and the people that I've talked to the Hill and I think Mort did too today is the earn citizenship program.

In the House they just don't like it. That's why Roy Blunt for one, the House Republican whip says they need to go back and put in that Isakson amendment. The one that was defeated in the Senate. It says once you have certified that you have operational control of the border, then you earn citizenship.

HUME: Aren't there other things in the Senate bill that are unacceptable to House members? For example, you have to pay back taxes but not all your back taxes?

BARNES: They can straighten out these things. They managers amendment at the end and they can throw out, they can get rid of that stuff. Whether you delay an earned citizenship program, though, that's a biggie. The Senate .

KONDRACKE: It will never pass in the Senate. One of the bills that has a serious postponement of earned citizenship, the Democrats simply will not go along with that.

HUME: Let me just ask you about some of the things that we now discovered, Major Garrett reported tonight, are still in the Senate bill, the possibility that illegal immigrants could get the earned income tax credit. Could that survive in the end?

BARNES: Not in the House.

HUME: And what about the business of paying some but not all of your taxes? Could that survive in a final bill?

KONDRACKE: I agree with Fred, probably not.

HUME: So let's assume some of these particular provisions which are anathema in the house, these are got out of it. Do we have then the outlines after compromise?

BARNES: Not enough yet.

EASTON: What you've got now is the talk about a guest worker program where you have to go back to your country before you .

HUME: Correct.

EASTON: And I'm not sure that's going to happen.

HUME: Do you think there's going to be a bill in the end?

EASTON: I think it's much more iffy than what was a couple weeks ago.

HUME: What do you think, Fred?

BARNES: I think there will be a bill but I'm not as sure as I was yesterday.

HUME: Last night.

BARNES: Yeah. Last night.

HUME: That's what I was trying to get out of everybody the whole time here, folks.

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