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American Morning

Constitutional Clash?; Day of Remembrance

Aired May 29, 2006 - 08:31   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SOLEDAD O'BRIEN, CNN ANCHOR: Heat's on the White House. Many Republican and Democratic leaders say an FBI raid on Congressman William Jefferson's office nine days ago trampled on the Constitution.
Tomorrow, the House Judiciary Committee is going to hold a hearing on the search. Jonathan Turley is a constitutional law expert at George Washington University Law School. That's in Washington D.C.

Jonathan, nice to see you, as always. Thanks for talking with us.

JONATHAN TURLEY, CONSTITUTIONAL LAW EXPERT: Thank you.

S. O'BRIEN: Here you have the search of a guy's office who is under investigation for bribery. Why exactly is this a violation of this -- part of the Constitution, or a violation of the separation of powers?

TURLEY: Well, I'll be testifying at that hearing tomorrow. And one of the things I'll be talking about with the House Judiciary Committee is that this really shatters over 200 years of precedent. For 200 years, presidents have really restrained themselves despite great temptations in executing search warrants on congressional offices. Off the top of my head, I can name six criminal cases with a far greater reason for executing a search warrant of this kind, but they haven't done it, because a separation of powers is the thing that gives balance to our system. It's one of the reasons we have succeeded for so long under difficult circumstances, and that doctrine exists through a sense of mutual respect and self restraint.

S. O'BRIEN: Yes, but there are people, as you well know, who say here's a guy who is -- it looks like has done very shady things, at least he hasn't been able to explain so far. I mean, you have the $90,000 in tupperware in the freezer and that whole thing.

Hypothetically speaking, if you had someone who had killed somebody, had maybe a dead body involved here, are you still saying, well, listen, separation of powers, the Constitution says you can't go in and search?

TURLEY: No, I'm not saying that. First of all, in terms of Congressman Jefferson, he has very lit to do with any of this. I mean, there are many members, I think, who would love to throw him from a great height, but it's not really about him, and it's not about the material in the office. They could have gotten the same material in a way that would not have violated 200 years of precedent. In the past, they've used subpoenas. Now here, he refused a subpoena. They could have gone to court. They court could have ordered him on pain of imprisonment to turn over this material. They could have sealed the office. There's various ways they could have done this. None of that was done. They barred the general counsel in the House of Representatives from being present. They barred his lawyer from being present. It was a very thuggish event.

S. O'BRIEN: But let me ask you a question, we've had a string of elected officials who have come on and said, you know, no elected official is above the law, and then they go on to say, but we do know support this. It sounds to me like well actually then they saying they are above the law. I mean, if there was concern of criminal activity taking place or documentation thereof in the office, doesn't that sound like they're above the law?

TURLEY: Yes, it does sound that way. And there's a great misunderstanding of the public, that no one is questioning that Congressman Jefferson can be arrested, he can be prosecuted, he can be incarcerated. No one is questioning that he can be forced to turn over material in the office. This is not whether you can prosecute a member of Congress for bribery.

It is about the means. It is about how you do it. And much in our system goes to the means used.

And I have to say this president, according to many of us, is probably the most hostile in history towards the separation of powers. This is not the first time that this administration has been called to the mat for shattering principles of separation of powers. From the minute this president took office, before 9/11, he was criticized for his apparent failure to recognize key principles of a government of shared and separated powers.

S. O'BRIEN: Jonathan Turley of George Washington University Law School. Jonathan, thanks, as always.

TURLEY: Thanks, Soledad.

Let's get right to Dick Thornburgh. He was the attorney general under President Reagan from 1988 through 1991.

Nice to see you, sir. Thanks for talking with us.

RICHARD THORNBURGH, FMR. U.S. ATTY. GEN.: Good morning.

S. O'BRIEN: I know you heard what Professor Turley had to say just a moment ago. He says the problem is the means used. It really doesn't have anything to do with this particular congressman for whom, frankly, things look pretty bad, money in the freezer and all, but it's the means used. Does he have a point?

THORNBURGH: Well, I think it's somewhat ironic that the question of separation of powers is raised in an instance like this. We have three branches of government, the executive, legislative and judicial. If there are improper means used in the execution of a judicially ordered search warrant, the courts will deal with that, and it's not a matter that should be dealt with unilaterally by the Congress or the president.

S. O'BRIEN: Well, let me ask you a question, though -- under the separation of powers, each branch can place limits, essentially, on the other branches with the idea no one gets to go too far. Why wouldn't this just be as we have seen, as Professor Turley pointed over, you know, this is precedent setting it's happened. Why wouldn't this just be, there's a boundary, you can't search the office?

THORNBURGH: I think precedent setting only in the fact that the congressman refused to respond to a subpoena for these documents, and the FBI, with its responsibility to go wherever the evidence leads, sought to utilize a search warrant that was issued on the basis of an 83-page affidavit setting forth probable cause, which is what the Constitution requires, for the search to be carried out in order to accumulate evidence that could be used against Congressman Jefferson.

S. O'BRIEN: They said in the affidavit no other methods were available to try to get these things, and we're talking about faxes, and notes, and telephone records and other forms of communication.

But as you heard from Professor Turley a moment ago, it sounds like there's a list he has of other options. I mean, certainly he could threaten prison. That might make a Congressman, a sitting Congressman, turn over documents.

THORNBURGH: Well, I think that's something that's left to the discretion of law enforcement. It's ironic when there's so much talk about warrantless searches and the like about there, and that's controversial to be sure, that here the FBI played by the rules. They went through the processes of the court, the chief judge and the district court here in the District of Columbia authorized the search warrant. There's no showing of abuse in its carrying out, and the congressman simply has to respond. There's not one law for congressman and one law for other Americans.

S. O'BRIEN: As you are well aware, the attorney general, the deputy attorney general, and also the FBI director threatened to quit if the documents are return. You were an attorney general -- would you have done the same thing, threatened to quit over this kind of issue?

THORNBURGH: I don't know that threats were made, but certainly concerns were expressed. During the time that I served as attorney general under five presidents, there wasn't any hint of a suggestion that the president would intervene in an ongoing criminal investigation. I think President Bush intervened in good faith here to try to provide what he identified as a cooling-off period, and I think that by the time that that cooling-off period has expired, 45 days, this will be a memory rather than an issue.

S. O'BRIEN: That will be interesting to see if that really happens the way the rhetoric is now. Former U.S. Attorney General Dick Thornburgh, thanks for talking with us, sir. Appreciate it -- Miles. THORNBURGH: Thank you.

Thank you.

MILES O'BRIEN, CNN ANCHOR: Memorial Day is a holiday with a lot of layers. It is first and foremost a time to remember men and women who have fought and died for our freedoms. It's also a time to honor those in uniform who are now risking it all. It's also the first holiday of the summer, families spending some time with each other. All of this comes together on the deck of a flat top, moored in the Hudson River. The USS Intrepid, now a floating museum.

Allan Chernoff is there this with morning, and he's got some with people in uniform with him.

Hello, Allan.

ALLAN CHERNOFF, CNN CORRESPONDENT: Hello, Miles.

And we do have the honor of this Memorial Day of interviewing a war hero, war hero from Iraq. To my far left is Hospital Corpsman Gilbert Rocha, and Corpsman was actually injured by two suicide bombers. Nonetheless, he tended to the injuries of his platoon members, and Staff Sergeant Shawn Johnston was there witnessing all of it.

First of all, staff sergeant, thank you for joining us. And tell me what happened that June Day one year ago.

STAFF SGT. SHAWN JOHNSTON, U.S. MARINE CORPS: Yes, sir. While performing combat operations in the western regions of Iraq, we were setting up a vehicle checkpoint. And unfortunately we were hit by two suicide bombers immediately. The first two vehicles that came in, three seconds away part from each other. As soon as it happened, we maneuvered the vehicles around to secure the site and coordinated a medevac, and saw this corpsman here go into action, and had the honor of having him in the platoon. And disregarding his own wounds, because he was on the ground when it happened. There was two Marines and the corpsman, and that's where the vehicles detonated on them. So I watched him go into action, disregarding his own wounds,and treated the two Marines before he even cared for himself.

CHERNOFF: Corpsman Rocha, let me ask you, what was going through your mind when all of this happened so rapidly?

CORPSMAN GILBERT ROCHA, U.S. NAVY: It was pretty crazy out there, explosives going off al around me. And first thing, just first off, I just needed to do my job, just needed to get those Marines back.

CHERNOFF: And you suffered shrapnel injuries to your leg?

ROCHA: Yes, I did, shrapnel to my thigh, my ankle and some in my neck, too, sir.

CHERNOFF: Now all of this occurred in western Iraq along a highway. You were manning a check point there?

ROCHA: Yes, sir.

CHERNOFF: OK, very well.

Now tell me, Memorial Day here aboard the USS Intrepid in New York. First of all, corpsman, what does it mean to you to be here on Memorial Day. Must have extra significance this year?

ROCHA: Well, it's a honor. Because experiencing firsthand, you know, being in combat and everything, I mean, it is -- it brings more meaning to it, because I've been actually in it, and I know what it means to actually come home from all of that.

CHERNOFF: Staff Sergeant, you're also here on Fleet Week.

JOHNSTON: Yes, sir.

CHERNOFF: Enjoying New York City. Tell me about your experience here. Having a good time?

JOHNSTON: Excellent time, sir. Experiencing the sights, the museums, the Empire State building. We visiting the memorial to the World Trade Center site. Very touching place. The people are friendly and very -- have a lot of hospitality.

CHERNOFF: Corpsman, your thoughts about New York?

ROCHA: Very good hospitality. Everywhere we go, people are willing to buy our food, buy our drinks, just to stop by an say hi. It's real warming.

CHERNOFF: A real honor to interview both of you this Memorial Day.

ROCHA: Thank you, sir.

CHERNOFF: Let's head back do the studio now.

M. O'BRIEN: Thank you, Allan Chernoff. I love hearing that, when people say a lot of hospitality here in New York. You know, that's...

S. O'BRIEN: It's all true.

M. O'BRIEN: Defies the myth.

S. O'BRIEN: No. Please.

M. O'BRIEN: No, it is a myth. I believe it. It's a myth.

Allan Chernoff, thank you for sharing that with us. It was good to meet those gentlemen.

(WEATHER REPORT) S. O'BRIEN: Coming this morning, is fuel made from corn the solution to America's high gas prices? Andy's got a Fact Check on ethanol as he "Minds Your Business" just ahead.

And school's almost out for the summer. We have tips on keeping the kids busy without breaking the bank.

Stay with us. You're watching AMERICAN MORNING.

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M. O'BRIEN: Still to come on the program, a family divided by the war in Iraq. A mother and father both stationed overseas, finally reunited with their son.

And later, two heroes of World War II, one of them a senator. The other retired from politics. They reflect on their shared triumphs and tragedies on this Memorial Day.

Stay with us.

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M. O'BRIEN: On this Memorial Day, we remember our troops and their families, both enduring the uncertainty and the agony of war. It's all part of a special section online on CNN.com, and at CNN.com/pipeline.

Richard Lui joins us live from our Pipeline offices in Atlanta. Richard, tell us about this project.

RICHARD LUI, CNN PIPELINE: Good morning, Miles, yes. This CNN.com "Coming Home" microsite is a way of looking at the people behind all of these statistics and these wars and all of the covers that we have had so far on CNN.com, as well the rest of CNN. If you go to the microsite, you can find all of the different sorts of people that have been involved in the wars and have come back, such as the story of Diane and Denver Williams.

(BEGIN VIDEOTAPE)

DIANE WILLIAMS: Time is so important that you never know when your time's going to run out.

DENVER WILLIAMS: She takes full advantage of the time we do have.

DIANE WILLIAMS: It makes it -- yes. And, you know, I think every time we've come back from being apart, without the three of us being together, you know, you kind of just pick right back up and you appreciate the routine of life. Where people think I'm stuck in the rut, I enjoy the rut.

UNIDENTIFIED MALE: Just because we've been separated for so long and now we're seeing each other, we're so much more connected than normal, you know? Normal it's like, hey, what's up? Now it's like, so how was your day? We actually listen and pay attention.

DIANE WILLIAMS: Makes you appreciate what you have.

DENVER WILLIAMS: Your time is precious.

UNIDENTIFIED MALE: Yes.

DENVER WILLIAMS: Yes.

(END VIDEOTAPE)

LUI: Well, Miles, that's just one of the stories that we have at CNN.com right now. This is just a very interesting story because, actually, Josh -- although he has been separated from his parents, his parents made the conscious decision to go together to war in Iraq. So stories like that, all of that at CNN.com.

M. O'BRIEN: Wow, that's a tough decision to make. Tell us where we can find these stories, Richard.

LUI: Well, it's right on the main page, or if you want to go straight to the microsite, it is CNN.com/cominghome.

M. O'BRIEN: All right. Thank you very much, Richard Lui. I appreciate it.

LUI: You got it.

M. O'BRIEN: Remember, you can log on and get the best CNN coverage right at your fingertips on CNN Pipeline. Just go to CNN.com/pipeline. For a small fee, you get the best video and stories CNN has to offer. You can be your own news producer anytime you want.

Soledad?

S. O'BRIEN: In a moment, a look at our top stories, including the violent riots in the street in Kabul, Afghanistan, the worst violence since the Taliban was overthrown.

The Pentagon responding to allegations of U.S. military atrocities in Haditha, Iraq.

The death toll in Indonesia now topping five thousand after Saturday's earthquake.

Senate Majority Leader Bill Frist now says it was OK for the FBI to raid a congressman's office.

And America remembers the fallen heroes. A look at tributes in the nation's capital. You're looking at the Vietnam Veteran's Memorial in Washington, D.C. Stay with us. You're watching AMERICAN MORNING.

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S. O'BRIEN: Get the latest news every morning in your e-mail. Sign up for AMERICAN MORNING "Quick News" at CNN.com/am.

School just about out for the summer. It's great if you're a kid. It's stressful if you're a parent. Coming up, we've got some great ideas on how to keep those kids entertained 24/7. And best news of all, it won't break the bank. That's ahead on AMERICAN MORNING. We're back in a moment.

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