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GOP Congress Expresses Outrage, Says Bush Administration Went Too Far with Searches And Case Should Go To Supreme Court:
Details here.
Dave!:
Why should they be outraged about searches? Are they trying to hide something?

Oh, wait, that's only an acceptable response when it's *our* privacy that is being violated.
5.24.2006 12:36am
Mr. X (www):
I love watching Denny Hastert talk about how Constitutional standards that have worked for 219 years are still good enough for investigating corruption.

I just wish he felt the same way about my civil liberties as he does about his own.
5.24.2006 12:41am
al (mail):
May be these Constitutional standards DID NOT work for 219 years ? If it did work corruption of elected officials would be history long time ago.
5.24.2006 12:54am
Irensaga (mail):
Bush doesn't give a damn about separation of powers?

We knew that already.

Nice to know the House Republicans know it too.
5.24.2006 1:10am
Angus:
How is it that people can generally acknowledge a broad "executive privilege" to prevent investigations that might also uncover sensitive materials, but the Congress has no "legislative privilege"?

Why did the Justice department not even notify the Speaker of the House or the Capitol Police (whose jurisdiction it was) about the search?

Can the Congress go rooting around all the files in the Oval Office and West Wing whenever it wants?

This dates back to Charles I, who used his royal powers to browbeat legislators into obeying him, and then finally doing away with Parliament entirely.
5.24.2006 1:20am
Tom Holsinger (mail):
Senator Snort - "I stand four-square against the involuntary retirement of dedicated public servants!"
5.24.2006 2:03am
Steve:
Did Charles I have to get a search warrant to browbeat those legislators? Cause I'm pretty sure the FBI can't search a congressional office without a warrant.

Now, maybe something in Article II says the warrant requirement is quaint and obsolete, but we're not there yet.
5.24.2006 2:06am
Tom Holsinger (mail):
Steve,

Consider that the FBI does not need search warrants to search federal office buildings of any sort. The operative word here is "reasonable".

I have no expectation of privacy in my office in the county courthouse. It can be searched at any time by persons authorized by the court administrator.

Likewise there is no expectation of privacy by employees at their place of employment, against their employer, absent special recognition of that fact in an employee handbook or something.

Sarcasm is lost on some people. Reread Professor Kerr's opening post.
5.24.2006 2:22am
OrinKerr:
Tom,

I think you're wrong on the Fourth Amendment issue: I would be pretty sure that members of Congress have a reasonable expectation of privacy in their offices under O'Connor v. Ortega. Further, this is clearly a law enforcement search, not a work-related search authorized by an employer. Given that, I think the FBI needed a warrant.

Orin
5.24.2006 2:39am
Tom Holsinger (mail):
Professor Kerr,

I could be wrong about inter-branch things, but I doubt there is a reasonable expectation of privacy in the office refrigerators on Capitol Hill. I'm still stuck on "reasonable".
5.24.2006 3:02am
Tom Holsinger (mail):
Bear in mind that not all evidence and searches are equal here. Speaker Hastert is complaining about Congressional papers under the speech and debate clause. That is no impediment to searches for evidence of offenses under 18 U.S.C. 1951 (extortion), and 18 U.S.C. 201, et seq. (bribery). The 4th Amendment protects "against unreasonable searches and seizures".
5.24.2006 3:23am
Robin Roberts (mail) (www):
Remind me again of the Congressional power to enforce the laws .... hmmm, odd. Doesn't appear in Article I that I can find.

However, as for needing a warrant, the news reports I've seen indicate that there was a search warrant.
5.24.2006 3:47am
Steve:
I think O'Connor v. Ortega is clearly dispositive of this argument, leaving aside the absurdity of the claim that 200 years with no FBI raids on Congressional offices is insufficient to create a reasonable expecation of privacy.
5.24.2006 3:48am
Angus:
Likewise there is no expectation of privacy by employees at their place of employment, against their employer, absent special recognition of that fact in an employee handbook or something.

Are you seriously saying that elected U.S. Congressmen are mere employees of the Executive branch? Are you applying for a job with the Bush administration, because they'd love you.

As for the refrigerator comment, the refrigerator was in Jefferson's home, not a Congressional building. The anger here is executive branch agents rifiling through internal Congressional documents looking at *everything*, including papers related to legislating.

There is some case law dealing with this issue:

Link

"The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches. Gravel v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395 U.S. 486 (1969).

While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527."
5.24.2006 7:25am
Medis:
From an AP report:

"We are hoping that there's a way to balance the constitutional concerns of the House of Representatives with the law enforcement obligations of the executive branch," White House press secretary Tony Snow said. "Obviously we are taking note of Speaker Hastert's statements."

Attorney General Alberto Gonzales tried to strike a conciliatory tone, saying, "We have a great deal of respect for the Congress as a coequal branch of government." But he also defended the search: "We have an obligation to the American people to pursue the evidence where it exists."
__________

At some point, this Administration seems to have forgotten that the Constitution is the supreme law of the land, and not just one of many factors that should be balanced against other factors.
5.24.2006 8:06am
Bruce Hayden (mail) (www):
I must be missing something here. They had video tape of Jefferson taking the bribes. It sounds like they even had the remaining $90k of the $100k by then. Based on this, they got a federal district court judge to issue a search warrant, presumably looking for the other $10k or other questionable bundles of cash. So, it looks like if it had been anywhere else in the country than the Congressman's offices, they would have been more than ok with the search.

It seems like the theory is that as long as someone in Congress can get bribe money into the Capital or the adjoining offices, he/she is home free. Kinda like those kids games, where if you get home, you are safe. Here, if they can get it home to Congress, the money is apparently supposed to be safe, at least until they leave the base and try to take it out of the Capital.
5.24.2006 8:25am
Pete Freans (mail):
It's my understanding that the congressman's lawyers ignored government subpoenas for several months. I initially heard a report of an 8 month stalemate but I may be mistaken. Assuming this is correct, how long should law enforcement wait for an individual under investigation, regardless of social rank, to comply with it?
5.24.2006 8:31am
Angus:
The proper procedure should be to officially request that the Congressional Sergeant-at-Arms and the Capitol Police carry out the search and turn over all relevant evidence to the Police.

In this case, the executive just decided to override the legislative branch's internal police and enforcement procedures. It seems like the DOJ dealt exclusively with Jefferson himself for a few months, then, instead of approaching the Congress for insistance, just decided to invade the Capitol grounds.
5.24.2006 8:39am
Medis:
Bruce,

You appear to be missing at least one very important thing. The government was looking for documents--documents that they had requested long before the refrigerator discovery--not money. In other words, your presumption is apparently wrong.

Pete,

The Constitutional significance of raiding an office of a member of Congress is not an issue of "social rank."
5.24.2006 8:48am
Federal Dog:
What does any of this have to do with a congressional "speech" or "debate?" What speech or debate did Jefferson give that people are claiming grants him immunity from a search warrant supported by probable cause?

I am missing something huge here.
5.24.2006 9:11am
Lior:
It is interesting to note that in many countries, members of the legislature enjoy a broad immunity which would cover this situation.

Members of the Irsaeli Knesset enjoy two kinds of immunity [knesset.gov.il]. Their "essential" immunity is similar to the "Speech and Debate" clause though more comprehensive. However, they also enjoy a "general" immunity from searches, detention and legal proceedings, in order to ensure that the executive may not harras the legislature via the police. For this reason only the Knesset itself can lift the latter immunity of one of its members following a request by the attorney general -- a member cannot waive his own immunity.

While the police may investigate a member of the Knesset on their own, I believe they cannot search his effects (either at his house or at the Knesset) without co-ordinating with the Knesset. I'm not sure how it works.
5.24.2006 9:22am
Medis:
Federal Dog,

If you haven't already, you should use the link provided by Angus, which is to the DOJ's own Criminal Resource Manual. To summarize, the phrase "any speech or debate in either House" has been construed to include a broad definition of "legislative acts."
5.24.2006 9:25am
Eric Muller (www):
The Republican leadership wants to do anything it conceivably can to keep this story in the headlines, by whatever means, because, as I heard on Fox News last night (and I am pretty much directly quoting the lead on the story, as presented by some Fox anchor or other), this is a case that "singlehandedly shows that corruption in Congress is a bipartisan effort."

That's what explains the very public burst of outrage from Messrs. Hastert and Boner.
5.24.2006 9:37am
Bruce Hayden (mail) (www):
Medis

Sorry, didn't get the document thing. If it had just been money, then I would think the probable cause and the warrant would be slam dunk. I was conflating the two, but as I reread the article, it does appear that the reason that they got the warrant was that Jefferson hadn't complied with a supoena for some documents.
5.24.2006 9:41am
Angus:
According to the DOJ link I gave earlier:

"The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused."

This procedure was evidently not followed in this case. My question is: why not?
5.24.2006 9:41am
Bruce Hayden (mail) (www):
It does get us back into a nice Separation of Powers issue again. I think that a strict reading of the Constitution would probably allow the search as part of the Executive Power. But, even though unenumerated, it would also seem to go to the heart of the Legislative power to control their own chambers.

I am not sure about the politics of this from the Administration's point of view. I think that they would want to save their Separation issues for the NSA stuff, and, as someone above pointed out, there are procedures in place that could have accomplished this without stepping on the toes of Congress. I doubt that the House leadership would have refused to have the Capital Police search Jefferson's offices under that warrant, given the video tape of his taking those bribes, etc.
5.24.2006 9:49am
Spoons (mail):
Those criticizing the search here should take a moment and try to set aside the fact that they dislike the current President (of whom I am no particular fan). You may not like the rule you are advocating when the future reshuffles the parties involved.

The claims of Congressional privilege here are outrageously overbroad. This was not, as some would have it, some mob of jackbooted thugs smashing down the doors to Congress in the dead of night. This was an FBI search, conducted pursuant to a warrant based on probable cause, of the office of a guy who is, lest we forget, pretty clearly guilty of staggering acts of public corruption. The Congressional speech and debate clause is actually rather narrow, though it has been somewhat expanded by the courts. Even the most expansive view of the clause, however, would never immunize members from Congress from search in this case. In the first place, having evidence of a crime in your office is not "speech or debate." In the second, since we are talking about felony charges, the speech and debate clause, by its own terms, doesn't even apply!

I'd prefer that my representatives not feel free to sell their integrity to the highest bidder and keep evidence of same in the offices I pay for. Whatever I may think of other "controversial" actions by the administration in the war on terror, I'm glad they're following the proper procedures to go after this guy.
5.24.2006 9:53am
Bruce Hayden (mail) (www):
The answer to the why, I suspect, despite my being (obviously) a supporter of the Administration, is that they just didn't think it through. Neither Bush nor Gonzales ever sat in Congress, and it was awhile ago that Cheney did. So, probably the thought process was, we have evidence, next step is a warrant. We have the warrant, next step is to search the premises like we always do. This is a federal office building, so, that makes it even easier. And, all of a sudden, they discover that, no, this federal office building isn't quite like the other 99+% of them across the nation. It doesn't really belong to the Executive branch, as do the other 99+% of them. In other words, they didn't think it through.
5.24.2006 9:56am
Freder Frederson (mail):
In other words, they didn't think it through.

That should be the epitaph for the entire Administration.
5.24.2006 10:07am
Bruce Hayden (mail) (www):
Actually, rethinking my previous post, I think that this was Gonzalses or one of his minions. I doubt that it got up to Bush, and even less likely Cheney, who had served in Congress, and, thus, might have been a voice of reason here, was most likely totally out of the loop. Most likely it came up as a routine request to follow up leads from the FBI or the prosecutor following the case, and it just wasn't flagged for high enough review. It SHOULD have gotten at least to Gonzales for approval, but I am not sure that it did.

Let me note that this is one place that Gonzales' predecessor, Ashcroft, would almost inevitably not screwed up here, having served in the Senate.

I think that part of my point here is that Congress expects certain deference from the Executive Branch, and they are so livid about this because this is the core of what they expect in deference. The one thing that they do control is their Capital and adjoining offices. My theory is that those who approved the execution of this warrant as it was done, seemed to be totally oblivious to this. And that is why I am theorizing that the source of the problem was that the decisionmakers here had not served in Congress, and, thus, were not aware of Congress' sensitivity on this subject.
5.24.2006 10:07am
Angus:
Spoons,

The point is that during the search of the Congressman's office, executive branch agents would read many unrelated legislative documents (including some written by other members) that Congress and the DOJ's own guidelines say the executive has no business examining. The Attorney General's response to this yesterday essentially boiled down to: "Yes, we'll see a lot of things we shouldn't see, but we promise to try and not remember them."

Even during the peak of Watergate, Congress did not insist on sending the DC or Capitol Police into the White House to examine everything from top to bottom. Congress instead requested and subpeonaed specific documents relevant to the investigation and then allowed the executive branch to figure out how best to hand them over (albeit after a struggle).

It is a basic respect for the other branches of government, and it is the basis of our system, far beyond the case of one corrupt Congressman.

If the Supreme Court ruled that Congress cannot even find out something as narrow as who attended the meetings of the President's Energy Task Force, I've got to think the Court would side with Congress when it comes to the President's agents rummaging through every file and scrap in a Congressional office.
5.24.2006 10:20am
Bruce Hayden (mail) (www):
My next question is whether or not they found anything that they intend to use at trial against Jefferson when they searched his offices.

I ask that, because, absent that, I expect that the President's advisors will suggest very strongly that if he wants to get along with Congress, and get anything accomplished, ranging from getting his judges confirmed through immigration reform, he needs to make amends. Unfortunately, that means affirming this Legislative Branch power. But, by all indications so far, this means a lot to Congress, and shouldn't mean that much to the President and his Administration, and, so, he should make nice and appologize or have his AG do it (because that is probably where the problem arose in the first place).
5.24.2006 10:36am
Traveler:
The sections of the application for a search warrant that Byron York quotes appear to indicate that the FBI tried quite hard to get access without filing for a warrant.

And Orin, why is this post in all caps? The post on your own blog suggests that you don't think Jefferson has a constitutional leg to stand on.
5.24.2006 10:55am
Anderson (mail) (www):
The FBI had a warrant? They didn't just get a National Security Letter, or rely on Article Eleven?

This Dem fails to grasp the outrage, then. When Bush declares Jefferson an enemy combatant and detains him without habeas, then we'll talk.

But it's damn funny seeing the GOP House get its panties wadded over THIS. From the sublime to the ridiculous is but a step.
5.24.2006 10:56am
Medis:
Bruce,

It also seems to me that so far, at least, there is no evidence this issue was considered and decided at a high level in advance. I am concerned, however, about the way the Administration is now talking about this issue after the fact (again, they seem to be suggesting the Constitution is merely one factor among many that needs to be considered).

Spoons,

As an aside, I am quite confident that I would be just as concerned if this happened under President Hillary's watch. Then again, I'm not a Democrat.

Anyway, I'm not sure I understand the logic of your post. First, I don't see any exception for felony investigations in the Speech and Debate clause. Second, I don't think anyone is suggesting that the Speech and Debate clause would protect any sort of evidence of a crime a member of Congress might stash in their office. Indeed, I think if Bruce's presumption had been right (that they were looking for marked money), the issue might be different. However, the more specific issue is when the alleged evidence takes the form of legislative documents. That causes a Speech and Debate clause problem because now the government is inquiring into the legislative process itself, and that is what the Supreme Court has held is barred by the Speech and Debate clause.
5.24.2006 11:02am
Angus:
The sections of the application for a search warrant that Byron York quotes appear to indicate that the FBI tried quite hard to get access without filing for a warrant.

Just because the DOJ claims that does not make it true. Hastert and numerous others are saying that the DOJ never requested to the Congress that they produce the documents (which the Congress could do with a simple majority vote and a quick dispatch of the Capitol police). I'm sure that vote would have been approximately 434-1. Evidently, the DOJ's previous requests for documents were only directed at Jefferson personally.

Had the DOJ *really* tried, they could have solved this very simply in a few days without encroaching on the institutional independence of Congress. The preliminary conclusion one could draw at this point is that that was the whole point of the exercise: to try and establish that the executive branch was the boss of Congress.
5.24.2006 11:07am
A.S.:
The argument boils down to: Bribery = a Legislative Act. Therefore, Congress is entitled to ignore the law against bribery.

It seems to me that the direction this country is going is to make the Constitution irrelevant. If Congress wants to usurp the Executive Branch's power under the Constitution to defend the country, that's fine. If Congress wants to exempt themselves from the law of bribery, that's fine. Hey, what do we need the executive and judicial branches for anyway? Those things are just subsidiaries of the Legislative's branch's all-encompassing power.
5.24.2006 11:11am
Medis:
Traveler,

York's argument seems to rest on the proposition that the FBI exhausted its alternatives when the Congressman and his staff refused to turn over the documents. But that doesn't address what we have noted in the DOJ's own Criminal Resource Manual:

"The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused."

Was that actually done in this case? If not, why not?
5.24.2006 11:13am
Medis:
A.S.,

I don't see anyone arguing that bribery itself is a legislative act. Again, as the DOJ itself makes clear in the Manual, the issue arises only when the government seeks certain sorts of evidence of bribery.
5.24.2006 11:16am
A.S.:
Medis: the linked exerpt states: "both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process." (emphasis added)

Again, it seems to me the be saying: Bribery = the legislative process. I don't buy that.
5.24.2006 11:23am
Pete Freans (mail):
In response to Medis, I did not say nor suggest that there are no constitutional concerns. My point is that a separation of powers argument should not be used to shield any branch from oversight. If in fact the congressman was not cooperation with an ongoing investigation, what other option do they have? Should they simply drop the matter because of this alleged impenetrable wall? I would be hard-pressed to believe that the congressman was surprised to see the government at his door.
5.24.2006 11:23am
Andy Freeman (mail):
> DOJ itself makes clear in the Manual

Is the manual controlling?
5.24.2006 11:23am
Angus:
Medis,

I would also stress that an issue is what else does the executive have the authority to review while searching for evidence of bribery?

FBI Agent: Those files over there in the cabinet marked "Internal memos over legislation addressing the DOD's treatment of enemy combatants." We'll need to read every page of those carefully to make sure there is no evidence of this bribery hidden in those files.
5.24.2006 11:29am
Closet Libertarian (www):
I don't see the separation of powers argument as being very strong. The executive branch is in charge of law enforcement, so the FBI searching the congressional office with a valid warrant is not the same as Congress demanding executive papers.

Otherwise congressmen could hide bodies in their offices as long as they have the capital police under their thumb (as evidenced by the McKinney/Kennedy/McKenndey get out of jail free card).
5.24.2006 11:32am
Angus:
Andy,
The manual references that this is a Congressional claim under the Constitution, and that the DOJ "must" (the term it uses) abide by it. That seems to me an admission of the correctness of Congress's Constitutional claim.

Pete,
The option they had was to request that the Congress as a whole vote to search the office (using the Capitol police -- a legislative agency) and then turn over pertinent documents to to the DOJ.
5.24.2006 11:34am
Medis:
A.S.,

I don't follow your logic. You seem to be conflating the crime (bribery) with evidence of the crime. The latter could include information that is protected by the Speech and Debate clause, in which case the Executive Branch would have to get Congress to provide it voluntarily. But again, that is not saying bribery itself is a legislative act. It is saying that some evidence of bribery might involve legislative acts. And that strikes me as a pretty obvious statement when one is talking about the bribery of a member of Congress.

Pete,

Again, the next step is clearly laid out in the DOJ's Manual. If the individual member of Congress won't cooperate, you are supposed to go to the relevant House, which can provide the evidence on its own authority.

Andy,

I don't know exactly what you mean by "controlling." In general, the Manual discusses the relevant Supreme Court cases, and obviously those are authoritative. But the more specific suggestion in York's article seems to be that the government exhausted all of its options before seeking this warrant. But insofar as the DOJ's own Criminal Resources Manual lays out an option the government did not try, then obviously it is going to be hard to credit this suggestion.
5.24.2006 11:37am
Angus:
I don't see the separation of powers argument as being very strong. The executive branch is in charge of law enforcement, so the FBI searching the congressional office with a valid warrant is not the same as Congress demanding executive papers.

The pertinent question, though, is does the executive branch have the same level of jurisdiction over the physical location of the co-equal Legislative branch?
5.24.2006 11:38am
DustyR (mail) (www):
Bruce, the story linked by Orin rather clearly describes, briefly, the arrangements the Justice Department put in place in an effort address relevant documents being sought and legislative documents. It may not meet your standard of approval but certainly makes your characterization of the process and your subsequent suggestion they were oblivious, absurd.

From reading the little reported so far, its seems to me Justice was following the normal routine last summer based on the usual hard to ferret out a crime situation and it languished as usual. Then the $100k passed hands. After that, Justice deemed it crucial that continuation of this usual process not afford Jefferson the opportunity to cleanse his office of all supporting evidence of his crimes.

That reading, an initial opinion, comports better with the story to date than 'nobody thought about this'.
5.24.2006 11:47am
Steve:
The FBI could also read the formula for Coca-Cola in the course of a duly authorized search. I'm not convinced that the concerns here over confidential documents are particularly special or unique.

I'm rather persuaded by the argument that there probably should be more, and not fewer, investigations of this type considering the astounding amount of corruption in Congress. Keep in mind, this search warrant was obtained based on a 90-page affidavit. There's no reason to think the judiciary would take this sort of application lightly. Incidentally - since everyone is searching for precedent - is there any case law relating to a search of a judge's office, which would also raise separation of powers concerns?

Those criticizing the search here should take a moment and try to set aside the fact that they dislike the current President (of whom I am no particular fan). You may not like the rule you are advocating when the future reshuffles the parties involved.

I did want to take a moment to respond to this annoying comment. Let's see, the Republican Speaker of the House has expressed concerns about the search. Yours truly, a three-time Clinton voter, has been arguing that the search is appropriate. Indeed, Markos of Daily Kos states: "I must've missed the part of the Constitution that places Congress above all laws and disallows law enforcement officials from investigating lawbreaking on Capitol Hill."

Since there's little to suggest that partisan Democrats are routinely opposing the search, or that partisan Republicans are routinely cheering it, why even go down that road? As a "non-fan" of the President, doesn't it annoy you even a little bit when people suggest that even the most well-reasoned complaint about the administration is driven by raw Bush-hatred?
5.24.2006 11:48am
John (mail):
Isn't there an exception to all these immunities if a felony is involved?

Article I, sec. 6 says that members "shall 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 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."
5.24.2006 11:50am
Observer (mail):
Presumably no one here thinks it violates separation of powers for the Congress to issue subpoenas to Administration officials and drag them in front of the cameras and require them to produce documents by the truckload. That's part of Congress's oversight responsibility.

Similarly, it's the executive's job to investigate crimes. Congressmen aren't immune from prosecution for crimes. They are not immune from investigations for crimes. I can't think of any reason why their offices ought to be immune, either, from plain vanilla legal process, i.e., execution of a search warrant.

Suppose the FBI had evidence (probable cause to believe) that a congressman had pictures of kiddie porn on his computer. Are they supposed to ignore it? Are they supposed to tell the House leadership about it so they can tip the Congressman off to wipe his hard drive? Or are they supposed to go to a judge, get a search warrant, and seize the computer?

This seems like a no-brainer to me. Congressmen have limited immunity - for speeches on the floor of the Congress and certain kinds of legislative acts. But otherwise they are subject to the same laws that you and I are.

Institutionally, Congress can protect itself if it believes that the executive branch is abusing its powers. For example, if the FBI somehow duped some judges into giving search warrants solely for the purpose of harrassing some unfriendly legislators, the congress could subpoena the head of the FBI and grill him mercilesslly in front of the kleig lights about this. But here there is just one apparently corrupt legislator hiding evidence of his crimes in his office. I'd say he's SOOL.
5.24.2006 11:51am
Steve:
The latter could include information that is protected by the Speech and Debate clause, in which case the Executive Branch would have to get Congress to provide it voluntarily.

This could raise the interesting question of whether the Speech and Debate Clause creates a collective or individual right.

What distinguishes this interesting debate from the numerous other debates over the legality of various administration actions is that in this case, we have a controlling legal authority to defer to. First, the fact that a search warrant was issued by a judge ought to give us at least a little comfort that this wasn't a facially obvious violation of separation of powers. Second, the issue of whether this was an illegal or unconstitutional search can easily be raised by means of a suppression motion. So one way or the other, we'll have a judicial determination that tells us whether we can expect to see this sort of thing in the future.
5.24.2006 11:53am
Medis:
Angus,

I agree that is one of the central issues. I'm not sure yet what documents the government was actually seeking, but from York's excerpts, it is clear the government anticipated that they would be reviewing documents that might be protected by the Speech and Debate clause during their search. Their answer to this problem was to have the search of the office conducted by "non-case agents", who would in turn pass the documents to a "Filter Team". The Filter Team would then identify any documents potentially protected by the Speech and Debate clause, and take them to the District Court for a final determination of whether they were privileged. As far as I can tell, the excerpts don't actually say what happens then, but at least it seems like the documents would not be given to the prosecutor.

All of that is very creative, but I don't see why it isn't already a problem when government agents are looking through legislative documents, even if they promise not to give them to the prosecutor if they turn out to be covered by the Speech and Debate clause. In other words, the Speech and Debate clause protects against "question[ing] in any [] place," and it does not limit its protections to actions taken by prosecutors.

Similarly, I also don't see why the proper procedure was not to go through the House itself. Again, the DOJ previously seemed to recognize that Congress itself had to act as the "Filter Team", not some group of government agents.
5.24.2006 11:53am
Angus:
The FBI could also read the formula for Coca-Cola in the course of a duly authorized search. I'm not convinced that the concerns here over confidential documents are particularly special or unique.

You do not see the difference between the Coca-Cola company and separte and equal branch of the the United States Government?
5.24.2006 11:59am
JunkYardLawDog (mail):
If a congressman is part of a conspiracy to kidnap a woman and it is believed the kidnapped woman is buried alive at some unknown location, and if it is further believed that there is a document in the congressman's office that will lead to the discovery of the location of the kidnapped woman should the FBI get a warrant and rush in to the congress critters office or should they wait till the majority and minority leaders and ethics committee all get a chance to meet and then vote on what to do. What if this congress critter is part of the majority party in control of the capital police and it is believed evidence would be moved or destroyed if all these notices are given to all these people not interested in enforcement/investigtion of the case.

Legal Analysis aside, as a conservative, but recently waivering republican, I was quite upset with Hastert's and Frist's, etc. response to this. If a congressman is actively involved in committing various felonies, selling his office for profit, etc., then he has waived any expectations of privacy or separation of powers protections as far as I am concerned.

Apparently a federal judge felt the same way, in effect, because as I understand, the search warrant specifically ORDERED the capital police to step aside immediately and not interfere with the search. It seems to me such an order would not have been included in the warrant if there was not reason to believe this was necessary to avoid the destruction of important evidence.

I think the majority of the american people will look at this and react just like Jay Leno joked last night. Congress was upset because the same laws that apply to everyone else were applied to them, and they (the Congress) really hate it when the laws they expect everyone else to follow are applied to them.

Given all the oversight of congress of the executive branch, the use of this tool to beat up and restrain the executive, the use of questionable practices to set up executive positions that are NOT within the executive's control, it is laughable to me to see congress complaining that the executive branch in the exercise of its OVERSIGHT law enforcement power of congress critters lawfully and with a proper warrant exercised this law enforcement oversight power of the executive to pursue criminal evidence hidden in a congressional office.

Think of this executive action as just the mirror image of congress exercising oversight of spending of the Executive. In this case the Executive is exercising law enforcement oversight of the criminal activities of a congressman who has had the bad judgment to involve his congressional office in his felonious conduct.

If the FBI comes in during a session and pulls a congressman off the floor while giving a speech related to legislation under consideration, then I and all the people of the USA will be with the anti-executive types here. Searching an office when the congressman isn't even there isn't going to rile up anybody but fat arse congress critters seeking to avoid accountability and oversight of their criminal activities.

If the republican leadership in congress don't get it together in a matter of weeks on stuff like this and immigration, "Speaker Pelosi" and "Majority Leader Frist" will be a sure bet.

Additional point: They had a warrant, the holy grail of the anti-executive types here in other matters, if you think the warrant shouldn't have been issued take it up with the Judge. The FBI was just doing their jobs and they had that holy grail with them while doing it. That's 2 out of 3 branches of government said the search was perfectly good!!!

Says the "Dog"
5.24.2006 12:02pm
Angus:
Similarly, it's the executive's job to investigate crimes. Congressmen aren't immune from prosecution for crimes. They are not immune from investigations for crimes. I can't think of any reason why their offices ought to be immune, either, from plain vanilla legal process, i.e., execution of a search warrant.

No one is arguing that Congressmen are immune from prosecution for crimes. Merely that the process of evidence gathering by one branch of government cannot violate the rights and authority of another branch.
5.24.2006 12:03pm
Medis:
John,

I believe that the felony exception applies only to the arrest clause (and certainly that is what the punctuation would indicate).

Observer,

Again, I don't think anyone is suggesting that any sort of evidence kept in a congressional office would be protected by the Speech and Debate clause. The more specific issue is legislative documents.

Steve,

I'd be inclined to say it is not really a personal right, nor really even an institutional right, but rather a protection of the legislative process itself. But my assumption is that the rule-making powers of a House would allow it to voluntarily disclose legislative documents, even if they were in the personal possession of a member of Congress.
5.24.2006 12:04pm
Houston Lawyer:
America, Mark Twain once said, is a nation without a distinct criminal class "with the possible exception of Congress."

I'm sure there must be a prenumbra to the constitution that says that congressmen can't be searched in cathouses or casinos as well, not to mention rehab facilities.
5.24.2006 12:04pm
Steve:
You do not see the difference between the Coca-Cola company and separte and equal branch of the the United States Government?

Not in the sense that the latter's documents are so uniquely confidential that one cannot even conduct an otherwise permissible search for fear that someone might see super-secret documents in the course of doing so.

It seems to me that DOJ took great pains to devise procedures that would allow this search to go forward while simultaneously protecting Congress's legislative prerogatives. This demonstrates quite a bit of deference to a coequal branch in my book - you certainly wouldn't see them doing this for the Coca-Cola Company - and I think it strikes the appropriate balance.
5.24.2006 12:08pm
Medis:
JYLD,

I think it is quite odd to suggest that the individual criminal acts of a Member of Congress could waive consitutional provisions providing for the separation of powers. In short, those provisions are not there for the benefit of members of Congress, and nor even for the benefit of Congress collectively. Rather, they are there for the benefit of the American people, and an individual member of Congress cannot waive them on our behalf.
5.24.2006 12:10pm
Tom Holsinger (mail):
Angus and Medis,

I believe the FBI asked the Clerk of the House for the documents and he refused. This was after Congressman Jefferson had refused. Both occured months after the judge issued the search warrant. The FBI acted only after going through the proper channels.

Congressional immunity does not hide evidence of bribery from search warrants.
5.24.2006 12:14pm
Federal Dog:
"If you haven't already, you should use the link provided by Angus, which is to the DOJ's own Criminal Resource Manual. To summarize, the phrase "any speech or debate in either House" has been construed to include a broad definition of "legislative acts."


So they are claiming immunity from any criminal investigation/prosecution as long as they remain members of Congress?
5.24.2006 12:15pm
abb3w:
"Claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

It seems that the FBI (Executive) is investigating a violation of Bribery laws. They have obtained support a warrant (the Judiciary) as to the reasonableness of the search, and are using a "filter team" to insure priveleged materials remain so. While I want Bush impeached, I don't consider this a gross abuse of executive power.

While the "speech and debate" clause may severely limit the courtroom usability of anything found, I don't think the search is as big a problem as the congresscritters' whining suggests. Yes, it's symptomatic of the Bush team's executive dominance, and may awaken Congress to more general questions of civil liberties... but I think Congress is in the wrong, here. It's not just the executive acting, it's the executive acting with approval of the judiciary to support the legislative branch's own laws.

There appears to be at least one potential check that the Congress has left. Assume Jefferson is tried and convicted for Bribery. Assume furthermore that Congress conceeds his guilt, but feels most of the evidence trail is somehow tainted by this search. What happens if they refuse to expel him? Is the congressional "privilege from arrest" sufficient to protect Representative Jefferson from going to jail until he loses an election?
5.24.2006 12:16pm
Angus:
If a congressman is part of a conspiracy to kidnap a woman and it is believed the kidnapped woman is buried alive at some unknown location, and if it is further believed that there is a document in the congressman's office that will lead to the discovery of the location of the kidnapped woman

That's an easy one. Put in a 10 second call to the Capitol police. The Capitol Police can search any area of the Capitol grounds without a warrant in an emergency situation.
5.24.2006 12:16pm
Angus:
I believe the FBI asked the Clerk of the House for the documents and he refused.

If true, that would add something new to the situation. However, that is directly contrary to what leaders in Congress are saying.
5.24.2006 12:18pm
Medis:
Steve,

I don't quite get your point. As the Supreme Court has noted, the Speech and Debate clause is designed to protect the legislative process from certain sorts of abuses. The basic worry is that the Executive could use its role in enforcing the laws as a pretext for intimidating and otherwise improperly interfering with legislators.

As with many other such issues, the Constitution adopts a blanket rule to address this issue. Accordingly, it is not up to the Executive and Judicial branches to decide the right balance to strike on a case by case basis. Indeed, that is often the point of putting things like this into the Constitution--to remove the question from the discretion of the affected branches of government.
5.24.2006 12:19pm
Angus:
So they are claiming immunity from any criminal investigation/prosecution as long as they remain members of Congress?

No, they are saying that the examination of a legislative office for criminal evidence must be conducted by agents of the legislative branch, not the executive. The evidence would then be turned over to the executive without the executive seeing unrelated and protected information about legislation.

Would it be OK for the Congress to read all the files in the President and Vice-President's offices in a Plame investigation so long as Congress agreed to be "sensitive" about all the other information they also uncover?
5.24.2006 12:25pm
Medis:
Tom,

I'd also be interested in seeing support for that contention (that they did ask the Clerk of the House and were refused).

Federal Dog,

No, of course not. Again, the issue arises only with respect to certain kinds of inquiries--those into legislative acts--and no one is claiming that members of Congress have a general immunity from investigation and prosecution.

abb3w,

I think if the Supreme Court does in fact decide that this was a constitutional search, then that will end the issue. But I don't think the decision of a District Court necessarily represents the final word of the judicial branch.
5.24.2006 12:26pm
Zach (mail):
I know it's a violation of the 14i-th (fourteenth imaginary) amendment to read the actual text of the Constitution in deciding questions like this, but the actual clause clearly states that

They shall 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,

If Hastert wants to say that the Capitol Police should have conducted the raid, he should say so more explicitly, and clarify whether he thinks that's mandated by the Constitution or just a courtesy. I don't doubt that a broad deference would strengthen separation of powers, but I doubt it's mandated.

If he has time, it would be interesting to address why the Capitol Police couldn't have stepped in eight months ago and enforced the subpoena. Is that mandated by the super-separation of powers principle, where the Congress is exempt even from executive power that it controls privately as a counterbalance to the Executive Branch?
5.24.2006 12:35pm
Medis:
Zach,

Again, my understanding is that the felony exception applies only to the Arrest clause (and note the semi-colon at the end of the Arrest clause).
5.24.2006 12:40pm
Steve:
As the Supreme Court has noted, the Speech and Debate clause is designed to protect the legislative process from certain sorts of abuses. The basic worry is that the Executive could use its role in enforcing the laws as a pretext for intimidating and otherwise improperly interfering with legislators. As with many other such issues, the Constitution adopts a blanket rule to address this issue.

I simply don't see the blanket rule that says congressional offices are immune from search, sorry. Apparently the judge who approved the search warrant didn't see it, either.

The argument, as I see it, is that congressional offices contain certain documents that are protected under the Speech and Debate Clause, and therefore the executive branch can't even go in there because it might see some protected documents. I certainly don't find it obvious that the Speech and Debate Clause compels that conclusion.
5.24.2006 12:49pm
Angus:
Zach, if you want to define the principle at stake that narrowly, the Constitution vests total authority over Washington, D.C. in the Congress. So under the strict text of the Constitution, Congress could pass a law giving it the power to search the White House from top to bottom to come up with evidence of wrongdoing whenever Congress voted that they felt it was "reasonable". It is in D.C., after all, and that is a literal reading.

Answer: of course not.

I just wish the Founding Fathers had thought of a principle to deal with situations like this. They could have called it something catchy, like "separation of powers".
5.24.2006 12:54pm
Medis:
Steve,

I also don't think that there is a blanket rule against searching congressional offices. Again, if they were searching only for, say, marked bills in an office safe, then I think it would be a very different case.

But from the excerpts provided by York, it is clear that the government anticipated that its agents would be seizing and reviewing legislative documents protected by the Speech and Debate clause. The fact that the government will apparently atttempt to insulate the prosecutor from these documents does not change the fact that they will have already been seized and reviewed by some government agents.
5.24.2006 12:56pm
JohnG:
If one can argue that a judge's decision to expand the Congressional speech and debate clause, somewhat narrowly written in the Constitution, is valid and binding, how then can one than turn around and state that a warrant signed by a judge is invalid when applied to the same Congress. Either the court has jurisdiction over Congress or it does not.
5.24.2006 1:07pm
Zach (mail):
Medis:

The exception modifies "in all cases". It seems to me that the paragraph defines a set of privileges, including privilege from arrest and from questioning regarding any speech or debate, which apply in all cases except for treason, felony, or breach of peace.

I do support separation of powers, and I do believe that having the Capitol Police conduct such investigations tends to strengthen the separation, but I don't believe that separation of powers implies freedom from criminal prosecution, or that it allows Congress to erect a compliant police force as a barrier against criminal prosecution. If the Constitution does not explicitly mandate one policy over the other, then it's a question of policy, and one policy question is whether the Capitol Police force prosecutes congressmen agressively enough. Has the Kennedy drunk driving episode faded from memory so quickly?

I won't be at the computer for a while, so I'll have to return to the thread later.
5.24.2006 1:15pm
bcn (mail):
I have only seen the point I want to make kind of mentioned twice it the above comments. Maybe the Judicial and Executive braches did not trust the Capitol Police to do the job correctly. In the last few months the Capitol Police have not clothed themselves in glory. The chief of the police resigned recently because of nepotism and then we have the McKinney and Kennedy situations so maybe this is a signal to the Capitol Police need to get their house in order. If it was not meant that way they should probably taken as such. I think that there might be a lot more turf war at play here among the police forces than is being discussed.

On a side note, what is the exact mandate of the Capitol Police? Are they to protect the congress members? Or are they there to protect the facilities and the institution? If it is the former, then I think we have a problem, if it is the latter, they have very little role in this case.

Just my thoughts.

BCN
5.24.2006 1:20pm
Closet Libertarian (www):
Angus,

You seem comfortable letting Congress police iteself (including the capital police). They haven't done that or only foces on crimes commited on Capital grounds by non-congressmen. I find it hard to belive they would quickly cooperate with the FBI. They would more likely tip off the congressmen under investigation.
5.24.2006 1:21pm
A.S.:
I suppose I don't understand Medis's point.

Medis appears to acknowledge that some of a Congressman's documents are not "legislative acts", and thus are not privileged by the Speech and Debate Clause. And yet Medis seems to be saying that the Executive Branch cannot even search for those, non-privileged, documents. What I don't get is the reasoning behind that - because there might be some documents constituting "legislative acts" mixed in with the non-legislative acts?

But it is often the case in other situations that privileged documents are mixed in with non-privileged documents. And, in those cases, prosecutors use similar methods of weeding the one from the other. For example, take a search of a lawyers office. Some of the documetns seized may be privileged (attorney-client, or whatever). How does a prosecutor go about searching that office? Documents are collected and analyzed for potential privilege issues - a privilege log is created. And what if some documents are incorrectly marked as non-privileged, when in reality they are privileged? They are excluded from evidence. Well, same here!

So, I guess I would ask Medis why he thinks that investigators cannot search for non-privileged (i.e., non-legislative acts) documents?
5.24.2006 1:21pm
Federal Dog:
"No, they are saying that the examination of a legislative office for criminal evidence must be conducted by agents of the legislative branch, not the executive."


So they want to be investigated only by police whose jobs they directly control?
5.24.2006 1:33pm
Federal Dog:
"No, of course not. Again, the issue arises only with respect to certain kinds of inquiries--those into legislative acts"


But what legislative acts are in question here? We have come full circle back to my initial question.
5.24.2006 1:36pm
Angus:
A.S.,
Searching a lawyer's office is not even similar to searching the offices of a coequal branch of government. Yes, if constitutionally protected documents are mixed in with unprotected documents, the executive branch may not review them. It is up to the legislative branch to review them and then turn over the unprotected documents as evidence.

That, incidentally, is what Congress does in every investigation of the executive branch. They subpoena documents pertaining to event Z, and then let the executive sort through the documents to find things about Z, but not about events A-Y, and then hand them over. Congress does not demand to sort through everything in the White House from A-Z in search of Z.

Closet Libertarian: Why should object to Congress' right to investigate its own internal documents any more that you object to the executive's right to investigate its own internal documents.
5.24.2006 1:37pm
Angus:
So they want to be investigated only by police whose jobs they directly control?

Do you complain about the Department of Justice investigating executive branch members?
5.24.2006 1:38pm
Medis:
Zach,

I agree that the exception modifies "in all cases", but I don't think "in all cases" modifies the Speech and Debate clause. I think that is pretty obvious from the punctuation and structure of the paragraph. First, there is the semi-colon I noted. Second, the Arrest clause begins: "They shall in all cases . . .", and then the Speech and Debate clause reads: "for any Speech or Debate in either House, they shall not be questioned in any other Place." The "in all cases" in the Arrest clause modifies the first "They shall." But the Speech and Debate clause contains its own "they shall", and that one is not modified by the "in all cases" portion of the Arrest clause.

A.S.,

First, we don't know that the documents described by the search warrant would not be privileged by the Speech and Debate clause.

Second, I don't think that the analogy to ordinary privileges is particularly helpful here. In its Speech and Debate clause cases, the Supreme Court has noted that the clause grants Congress additional protections not enjoyed by ordinary citizens. Again, that was done precisely to prevent the executive branch, potentially with the aid of a "hostile judiciary", from using ordinary criminal and civil processes to intimidate and otherwise improperly interfere with legislators.

So, I don't think it is an adequate answer to say "This is how they do it in ordinary criminal cases." Again, insofar as government agents are already seizing and reviewing protected documents, I think the Speech and Debate clause issue arises.

Finally, I'd like to see some cases on the subject of law offices. I'm not saying you are wrong, but I'm not familiar with the practice that you are suggesting is commonplace.
5.24.2006 1:44pm
Russ (mail):
I am confused here - exactly what power of Congress was the executive branch, through the enforcement of the law, trying to squelch? The freedom to hide evidence?

There are two other branches involved here - the FBI that conducted the search(executive) and the judge that issued the warrant(judicial). Seems like a fairly good balance of powers there.

Congress is not above the law.
5.24.2006 1:50pm
Medis:
Federal Dog,

I'm not sure what documents the agents seized and are reviewing, but I'd note that according to the excerpts provided by York, they already conceded they might include documents protected by the Speech and Debate clause. To provide some examples, I might note that the Supreme Court has long held: "The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it."

In general, you should look at United States v. Brewster, which discusses these issues at length. Here is one useful passage:

The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.

Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator. It is not an "act resulting from the nature, and in the execution, of the office." Nor is it a "thing said or done by him, as a representative, in the exercise of the functions of that office." Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman's influence with the Executive Branch. And an inquiry into the purpose of a bribe "does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them." (citations omitted)
____________

The basic idea is that you can prosecute bribery simply by investigating whether the member of Congress illegally took money in exchange for a promise to do some official act. You don't then need to investigate what the member of Congress actually did as a legislator, and that is the part of the investigation that would give rise to a Speech and Debate clause problem.
5.24.2006 1:57pm
Rodger Lodger (mail):
Is there a principle that permits subpoenas of congressman but not searches of congressmen? I can't think of any. I am assuming the subpoena is enforceable,as by contempt sanction. Then what is the difference from the intrusion of a search warrant. And the warrant is issued by a court, so we have a third branch that must approve the intrusion of the 2d branch by the third branch. As for the politics of the thing, given the general inability of most of the lay public to care about how damning evidence is obtained, I see big trouble ahead for incumbents who complain about this search. The image of this guy keeping bribe dough in his freezer (at home, but so what?) is going to drown out all this powdered wig separation-of-powers fluff. To the good old commonsensical American public, it will sound like a dodge to protect one of their own from the bribery laws. And I agree.
5.24.2006 1:57pm
Medis:
By the way, to all those basically saying that two branches of government get to outvote one--the Supreme Court has frequently noted that the Speech and Debate clause prevents the Executive and Judicial branches from acting in concert to inquire into legislative actions.
5.24.2006 2:01pm
Medis:
Rodger Lodger,

I see no reason to believe a subpoena for legislative documents protected by the Speech and Debate clause is necessarily enforceable.

Incidentally, I agree that current public sentiment might not afford Congress much protection. Of course, a lot of the Constitution is designed to provide various protections even when current public sentiment would not.
5.24.2006 2:07pm
Angus:
That "powdered wig separation-of-powers fluff" is the basis of our Republic's continuing existence. No branch or two branches of government working in concert, may intrude upon the fundamental rights of the other.
5.24.2006 2:09pm
Tom Holsinger (mail):
"Congress is the only distinctly American criminal class" - Mark Twain

Since so many here want to blame the Bush administration for enforcing the law, and are trying to link this criminal investigation to the war on terror, I'll put it this way:

Congress is attempting to create a privileged sanctuary on Capitol Hill, where they are secure from criminal investigation and prosecution and may make raids on the Treasury, then take their boodle to safety.

This sounds like a real good argument for term limits.

I can't think of a more inspired way to increase President Bush's poll ratings while electing a Democratic majority in the House.

Hastert might not be elected Minority Leader if he succeeds in this endeavor.
5.24.2006 2:18pm
Pete Freans (mail):
There appears to be considerable reliance on this DOJ manual. Assuming the DOJ manual is controlling, the warrant was issued anyway and it didn't seem to bother either the DOJ or the issuing judge.

In short, "Customary practice", as cited by Angus earlier in the DOJ manual, does not necessarily mean a mandatory one. That cite is in the context of the Speech and Debate Clause, which I don't believe is relevant to this case anyway. Professor Kerr seems to agree in his post "Can the FBI Search a Congressional Office?" @ www.orinkerr.com but he does leaves room for debate.
5.24.2006 2:20pm
Pete Freans (mail):
To clarify, Mr. Kerr seems agrees that the Speech and Debate Clause is not relevant.
5.24.2006 2:22pm
Christopher Cooke:
Why didn't the DOJ move to enforce the previously issued subpoena? That seems simpler, and it would have brought the "Speech and Debate" clause issue to a judge to decide, assuming that is the grounds that Jefferson ignored the subpoena. It seems clear the DOJ wanted to short circuit the judicial process in this one respect, to get the evidence it wanted.

As far as judicial approval of the search warrant, I will note that, in my experience (I was a law clerk to a United States District Court Judge), a district court judge does not typically raise nor research legal issues if they are not first raised by the parties. So, if all you have is an FBI agent presenting a search warrant affidavit to a US Magistrate Judge (typically, Magistrates not District Judges, approve the search warrants), the Magistrate Judge probably did not research the Speech and Debate Clause issue, and may have only examined the affidavit for whether it established that there was probable cause to believe that evidence of a crime would be found in the Congressman's offices. And, even if the Magistrate Judge thought about the Speech and Debate Clause issue (seems obvious to me to ask, "is there anything different about this situation, given that this an office of a member of the US Congress?") certainly it would have been better for the judge to have had the benefit of a full hearing on the issue, after receiving briefs from both sides. Perhaps that is why the DOJ didn't seek to enforce the subpoena (it thought it might lose if there was a full opportunity to brief the issue).
5.24.2006 2:25pm
Closet Libertarian (www):
Angus,

If we thought Congress and the capial police were doing an honest job of investigating crime or cooperating with investigations, then the FBI wouldn't have to get a warrant. However, if Congress doesn't cooperate, I say send in the FBI. What would you do?

This is from the capital police web page (http://www.uscapitolpolice.gov/home.html ):
"Our main focus still lies in protecting life and property; preventing, detecting, and investigating criminal acts; and enforcing traffic regulations throughout a large complex of congressional buildings, parks, and thoroughfares. Additionally, we are responsible for protecting Members of Congress, Officers of the United States Senate, United States House of Representatives, and their families. We serve these individuals throughout the entire United States, its territories and possessions, and throughout the District of Columbia."
5.24.2006 2:28pm
Medis:
Pete,

Again, I think the Manual aptly summarizes the Supreme Court cases on the subject. Also, insofar as it outlines an alternative procedure (although Tom claims this procedure was in fact tried), it goes to the exhaustion argument upon which the warrant application relied in part.

Anyway, I think Orin's post relies on this assumption: "Given that executing a search warrant involves neither an arrest nor questioning, it would seem to me that the Clause isn't applicable." I think his reasoning here is highly suspect. The Supreme Court has interpreted the Speech and Debate Clause as applying to any sort of "inquiry" into "legislative acts". Indeed, they have interpreted it as granting immunity from criminal prosecution when the prosecution would depend on such an inquiry. If a criminal prosecution can count as "questioning", then I see no reason to assume that executing a search warrant cannot count as "questioning" within the meaning of the Clause.
5.24.2006 2:31pm
Christopher Cooke:
One correction:

according to press accounts, a US District Judge approved the search warrant, not a Magistrate Judge.

Also, as far as seeking to enforce the subpoena, see the LA Times:

"Former House general counsel Stanley Brand, now a Washington lawyer, said the next step should have been to go to court to enforce the subpoena, not to bypass it with a search warrant."
5.24.2006 2:33pm
Medis:
Closet Libertarian,

I'm still waiting for support for Tom's claim that the DOJ asked the Clerk of the House first and was refused. So, we don't know yet that Congress refused to do its part.

Moreover, the fact that the Constitution sometimes ends up protecting bad actors does not provide a sufficient ground for ignoring constitutional protections. Generally, that is part of the price we pay for living according to the rule of law, and on balance it seems to work a lot better than the alternatives.
5.24.2006 2:36pm
JunkYardLawDog (mail):
Medis said:


The basic idea is that you can prosecute bribery simply by investigating whether the member of Congress illegally took money in exchange for a promise to do some official act. You don't then need to investigate what the member of Congress actually did as a legislator, and that is the part of the investigation that would give rise to a Speech and Debate clause problem.


If the criminal investigation is into congress critters supporting each other in their separate criminal activities by trading votes and influence on each other's legislation, than what the congress critters did with regard to legislation is an essential part of the criminal conspiracy. Further, no policie agency takes the word of the criminal that there is no evidence in a particular file cabinet. They get it reviewed by the holy grail of review the judiciary. In this case they have provided for exactly that kind of in-camera holy grail judicial review.


Angus said:


No branch or two branches of government working in concert, may intrude upon the fundamental rights of the other.


Well that certainly applies to the Supreme Court or the Congress with FISA trying to intrude upon the Executives Article II powers. Should also apply to congress setting up executive agencies that don't report to the executive. Its difficult to imagine a more clear cut violation of separation of powers.

Says the "Dog"
5.24.2006 2:42pm
A.S.:
Medis writes:

A.S.,

First, we don't know that the documents described by the search warrant would not be privileged by the Speech and Debate clause.


I think that can be inferred from the fact that they are taking great pains to ensure that privileged materials are weeded out from the seized documents and not given to the prosecting attorneys.

Second, I don't think that the analogy to ordinary privileges is particularly helpful here. In its Speech and Debate clause cases, the Supreme Court has noted that the clause grants Congress additional protections not enjoyed by ordinary citizens. Again, that was done precisely to prevent the executive branch, potentially with the aid of a "hostile judiciary", from using ordinary criminal and civil processes to intimidate and otherwise improperly interfere with legislators.

Of course Congress is given "additional protections not enjoyed by ordinary citizens", since the Speech and Debate Clause only pertains to Congress!

What I haven't seen is anything that says that documents priviliged by the Speech and Debate clause should be treated any differently than documents privileged by any other provision of the Constitution or law.

So, I don't think it is an adequate answer to say "This is how they do it in ordinary criminal cases." Again, insofar as government agents are already seizing and reviewing protected documents, I think the Speech and Debate clause issue arises.

Again, this is no different that when government agents seize documents protected under any other provision of the Constitution or law. When documents protected by the attorney-client privilige are seized, that privilege arises. But the fact that documents covered by that privilige may be seized incidentally to the seizure of documents not covered by that privilige does NOT mean that the non-covered documents can't be seized. What it means is that the government must undertake special procedures to ensure that they are not tainted by the privileged documents.

Finally, I'd like to see some cases on the subject of law offices. I'm not saying you are wrong, but I'm not familiar with the practice that you are suggesting is commonplace.

I'm not aware of any cases. But will the US Attorney's Manual describing the procedures for searching law offices help?

"Conducting the Search. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.

"While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a "privilege team" should be designated, consisting of agents and lawyers not involved in the underlying investigation.

"Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.

"The affidavit in support of the search warrant may attach any written instructions or, at a minimum, should generally state the government's intention to employ procedures designed to ensure that attorney-client privileges are not violated."


The parallels between the description of actions to be taken in such cases and the procedures described in the York article are clear.
5.24.2006 2:45pm
Medis:
JYLD,

I would think the same analysis would be applied to conspiracy charges arising out of bribery cases. You could bring conspiracy charges based on illegal agreements between members of Congress to perform official acts without actually inquiring into whether they fulfilled those agreements.

Incidentally, if I thought Article II actually did provide the President with immunity from laws regulating the conduct of war, I'd agree with you. Of course, since the Constitution clearly provides the opposite, I will decline to do so.
5.24.2006 2:57pm
PersonFromPorlock:
Well, whatever the rights or wrongs of the Constitutional situation, Congress is perfectly free to pass legislation forbidding the Executive Branch from spending appropriated funds to search Congressional offices; if you need a precedent, the cutoff of funding for the war in Vietnam is the obvious one.

So absent that, I suspect most of this sound and fury is just posturing. I do think Hastert has a point, though.
5.24.2006 2:59pm
Ed:

While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527."


If one assumes that bribery is part of the "regular course of the legislative process" would this not protect one from bribery?
5.24.2006 3:01pm
Medis:
A.S.,

Thank you--that was very helpful. I agree that the government appears to have treated this situation as the same as the search of an attorney's office.

Nonetheless, I still disagree that the issue is the same. As I related above, I don't see this as an ordinary privilege--indeed, I again do not think it is actually an individual right retained by members of Congress, or even an institutional right retained by Congress as a whole.

Anyway, you seem to want an authoritative statement that it is different from an ordinary privilege. I would actually want an authoritative statement that it is the same as an ordinary privilege. So, I'm not sure how to resolve this issue quickly.
5.24.2006 3:07pm
Closet Libertarian (www):
Medis,

Sure the Constitution will trump prosecution of specific criminal acts in some cases, but I can't see exempting Congressional offices from search in all cases. Any congressional privilege should be narrow. Should the FBI stop a hot pursuit if the criminal enters capital grounds?

As far as warrants being narrowly tailored for law office searches, shouldn't this be a requirement for all warrants?
5.24.2006 3:08pm
Medis:
Ed,

I'm not sure if your post was tongue-in-cheek, but the Supreme Court has reasoned that the government can prove bribery simply by showing that a member of Congress promised to do an official act in exchange for money, without actually inquiring into whether the member of Congress fulfilled this promise. And, perhaps naively, they claimed that was not part of the actual legislative process.
5.24.2006 3:11pm
Medis:
Closet Libertarian,

Again, I, at least, am not arguing that under no circumstances can the FBI enter or search a congressional office.

But here, the agents are seizing and reviewing documents that may be subject to the protection of the Speech and Debate clause.
5.24.2006 3:14pm
Bruce Hayden (mail) (www):
Someone brought up Congress' enumerated power over D.C.
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings
I am not sure if this helps them that much. It seems to me to say that they are the local legislature for the District. But executing search warrants signed by the Judiciary would seem to be an Executive function - which they arguably may curtail via their Legislative role here. I read this section as making them a quasi-state legislature as regards D.C.

I thought to throw this in, since the Speech and Debate Clause debate seems to have hit a temporary lull.
5.24.2006 3:21pm
A.S.:
As far as warrants being narrowly tailored for law office searches, shouldn't this be a requirement for all warrants?

I think what that's trying to say is that, because law office searches potentially implicate the attorney-client privilege, in law office searches there should be even MORE tailoring so that, if possible, privileged documents are not seized.

Similiarly, here, to the extent that documents priviliged by the Speech &Debate Clause are potentially subject to seizure, the search warrant should be especially narrowly tailored to avoid such seizure if possible. As Medis pointed out above, we don't know what the search warrant actually said. However, I did point out that York makes clear that the prosecution is taking extraordinary steps to avoid being tainted by privileged documents.

My only comment to Medis is that I am not aware of different degrees of privilege - is there a difference between an "ordinary" privilege like an attorney-client privilege and some extraordinary privilege that would prevent even the seizure of non-privileged documents somehow? (Note: I'm not thinking of the difference between a qualified and absolute privilege - those are evidentiary matters as to whether evidence can be introduced; here, we're discussing whether evidence can be searched and seized at all.)
5.24.2006 3:22pm
A.S.:
Again, I, at least, am not arguing that under no circumstances can the FBI enter or search a congressional office.

But here, the agents are seizing and reviewing documents that may be subject to the protection of the Speech and Debate clause.


OK, so I'm curious, what CAN the FBI do in a Congressional office? Do they have to have ZERO possibility of ever encountering anything to do with any "legislative act" (as that phrase is used to determine what is privileged by the Speech &Debate Clause)? Wht happens if they do accidentally happen upon something to do with a legislative act?
5.24.2006 3:25pm
Bruce Hayden (mail) (www):
My guess here, given what we know so far (always subject to new information) is that this search seems to have fallen into a gray area in the Separation of Powers. As I noted earlier, I think that this hits a Congressional hot button because it was a search of the one place where they do have some control - the Capital and its adjoining offices.

My prediction though is that, absent more information, if this did get to the Supreme Court, it would go in favor of Congress, because, I will submit, the best way for the Judiciary to retain its power is to not really side with either of the other two branches, and both the Administration, and, I would submit, the Judiciary, see the NSA survielance issues as much more important as Executive power, and, thus, to balance giving the Executive a win on the NSA stuff, they would give the Legislative branch a win here.

I know this is heresy to even suggest that the Supreme Court takes this sort of thin into account. Nevertheless...
5.24.2006 3:29pm
Bruce Hayden (mail) (www):
Boy, was it easier when I was talking about finding bundles of money in Jefferson's office. Looking for documents is a lot stickier here. I don't see bundles of money being searched for as impacting the Speech and Debates Clause. But documents are much more central to that Clause. Here we have the situation where any document might legitimately be connected to legislation, or might be connected to the bribery. It appears that you can take the one side, that the chance that the document might be legitimately related to legislation trumps the possibility that it might be about bribery, so don't look at anything. Or, the opposite. Is there a middle ground? And how would you find it?
5.24.2006 3:35pm
Closet Libertarian (www):
AS and Medis,

My experience is in civil cases where the parties produce as little as possible in response to a subpoena. Seems like a warrant would be different where the police sieze anything that could be relevant and then the burden shifts to the defense to claim privilege, etc. (more like a civil case where a party accidently produces a privildged document). So are you talking about what the FBI can search though or what they can use in court?
5.24.2006 3:37pm
Medis:
A.S.,

Keep in mind that I am not saying the Speech and Debate clause creates a "different degree of privilege". Rather, I am suggesting that it is a mistake to view it as a kind of privilege at all.

Perhaps it is worth remembering that the attorney-client privilege is a creature of the common law, although now adopted as such by Federal Rule of Evidence 501. In that sense, I don't think there is even a prima facie case for treating the constitutional Speech and Debate clause as the same thing as the common law/FRE attorney-client privilege.

Second, perhaps it is also worth remembering that searches and seizures of ordinary citizens are governed by the Fourth Amendment, which explicitly incorporates notions of reasonableness, probable cause, and warrants. But the Speech and Debate clause contains no such balancing principles nor a warrant clause: insofar as it applies at all, it does in fact provide for an absolute bar to inquiry. Again, I think this would defeat any suggestion that the protections afforded by the Speech and Debate clause are no different than any protections provided by the Fourth Amendment.

As for what the FBI could do in a congressional office: I think it would be helpful to have actual facts to assess. As I implied above, however, one possible example is that there may not be a Speech and Debate problem if the FBI went into an office to search for and seize something tangible, like marked cash, drugs, a murder weapon, or so on. Conversely, I think it would be problematic if the FBI wanted to seize an entire computer, however, if it was likely that the computer contained legislative documents. For that purpose, I would suggest again that Congress itself would have to provide the "filter team".
5.24.2006 3:44pm
Medis:
Closet Libertarian,

I think that is a decent characterization of the difference between subpoenas versus seizures, and I think it points out why seizures in particular may violate the Speech and Debate clause insofar as the government seizes legislative documents. The Supreme Court has said, "legislators engaged 'in the sphere of legitimate legislative activity,' should be protected not only from the consequences of litigation's results but also from the burden of defending themselves." This was in the context of immunity from civil suit, but the same notion could apply to seizures: the issue is not just whether the seized information could eventually be admitted as evidence, but the fact that the seizure itself violated the clause.

So, in that sense I am in fact suggesting, contra to A.S., that this is not just an evidentiary privilege. And that makes sense: it is not just successful prosecutions that can be used to intimidate and otherwise interfere with legislators.
5.24.2006 3:58pm
John Herbison (mail):
The failure to seek judicial enforcement of the subpoenas is cause for concern, as is the Congressman's apparent failure to move to quash the subpoenas. Either course of action would have brought about a judicial resolution of the competing institutional claims. Without having researched the issue, I suspect that a separation of powers argument would probably be unavailing in light of <i>United States v. Nixon</i>--Rep. Jefferson hardly stands on a better footing than did the former president.

That having been said, the stark contrast between the Congressional leadership's crying about execution of a presumptively valid search warrant upon a legislative office and that same leadership's abject silence in the wake of warrantless interception of telephone data or communications of ordinary citizens is reprehensible beyond words.
5.24.2006 4:04pm
John Herbison (mail):
The Justice Department's failure to seek judicial enforcement of the subpoena(s) is cause for concern, as it the apparent failure of the Congressman to move to quash the subpoena(s). Either would have led to a judicial resolution of the competing claims.

Without having researched the issue, I suspect a separation of powers argument would have been unavailing under United States v. Nixon--Rep. Jefferson hardly stands in a stronger position to resist a subpoena than did the former presedent.

That having been said, the contrast between the Congressional leadership's crying about the execution of a presumptively valid search warrant and that same leadership's abject silence in the face of the executive branch's warrantless interception of American citizens' domestic telephone communications is reprehensible beyond words. Speaker Hastert and Rep. Boehner appears to have gone form IOKIYAR (It's OK if your'e a Republican) to INOKITTISAMOC (It's not OK if the target is a member of Congress).

Each member of the Republican Congressional leadership (as well as their Democratic counterparts) needs to grow a pair.
5.24.2006 4:13pm
Medis:
Incidentally, I agree with those suggesting many objectors in Congress are being pretty hypocritical in light of their stance on the NSA issues. But as with broken clocks, hypocrites can also be right about some things some of the time.
5.24.2006 4:16pm
Seamus (mail):
Well, whatever the rights or wrongs of the Constitutional situation, Congress is perfectly free to pass legislation forbidding the Executive Branch from spending appropriated funds to search Congressional offices; if you need a precedent, the cutoff of funding for the war in Vietnam is the obvious one.

I think this Administration would get around that by ginning up a presidential signing statement, in which GWB would say that of course he doesn't read the law as impairing his constitutional duty to "take care that the laws be faithfully executed," and that if that means searching congressional office buildings, then that's just what he'll do.
5.24.2006 4:31pm
Tom Holsinger (mail):
Medis,

I was informed at Captains' Quarters that it was the House General Counsel who refused to comply with the subpena, not the Clerk of the House. I asked for a cite on that. I do recall reading last night that the FBI asked both Jefferson and then some House officer to comply with the subpena, and that it was refusal by whoever the latter was that triggered the search.

In any event, Congress is not above the law, especially not the criminal law, and Speaker Hastert has displayed hopefully fatal hubris given that the GOP Congressional majority taking office in 1995 stated in its "Contract with America" that:

"all laws that apply to the rest of the country also apply equally to the Congress"
5.24.2006 4:58pm
JunkYardLawDog (mail):
Tom Holsinger:

BINGO!! I think Haster and all the repbulican leadership of both houses needs to go. I'd prefer to see them replaced with some new face/attitude republicans, but if it takes Speaker Pelosi to clean out this trash, it will hurt less to do it now than later.

Says the "Dog"
5.24.2006 5:18pm
Medis:
Tom,

If you find something to cite, please let us know.
5.24.2006 6:01pm
Angus:
I would argue the absolutist position on this. Under no circumstances can the executive branch enter a Congressional building and seize documents related to legislation. They can subpeona the documents from the legislator, and they can subpeona the documents from the chamber of Congress in question. If the subpeonas get resisted, the executive can get them enforced judicially.

However, the executive does not have a right to read through the 95% of stuff that is constitutionally protected from executive inquiry in order to find the 5% of unprotected stuff that can be used as evidence in a crime.

There is a very real difference between searching a lawyer's office and searching a coequal branch of the United States government. There is no "separation of powers" between a lawyer and the executive branch.
5.24.2006 6:04pm
Medis:
Angus,

Why do you think such a subpoena could be enforced judicially? As I read the clause and the cases, its protections extend to executive action, judicial action, and both in concert. To put the point textually, "they shall not be questioned in any other place," and that doesn't seem to depend on who is doing the questioning.
5.24.2006 6:08pm
A.S.:
If the subpeonas get resisted, the executive can get them enforced judicially.

How does that work, exactly? What happens - the judge goes there himself to enforce the subpoena? He sends his law clerk?

And the judge, BTW, isn't part of the legislative branch. So how is there not a separation of powers concern with the judicial branch, just as there may be with the executive branch? And why is judicial enforcement of a subpoena any different that a judicially approved search warrant?
5.24.2006 6:19pm
A.S.:
There is a very real difference between searching a lawyer's office and searching a coequal branch of the United States government. There is no "separation of powers" between a lawyer and the executive branch.


Nope. There is, instead, attorney-client privilege. In both cases, there is material that the law enforcement personnel shouldn't be obtaining. That's what privilege is all about.
5.24.2006 6:21pm
Angus:
In that case, the subpeona is asking *only* for the material evidence of a crime that is not constitutionally protected. Nixon vs. U.S. already held that one branch cannot withhold evidence of a crime. However, Nixon in 1972 still had the right to withhold all information dealing with executive functions that were unrelated to the charges. Congress did not get to read every document about every subject in the White House.

Congress in 2006 should have that same right. They only must hand over information regarding the crime of bribery, and can withhold from the executive all information about unrelated legislative matters.

What happened here, though, was that apparently the executive branch just went ahead and seized everything in the office to sift through at their leisure--related or not, protected or not.

Sure, the DOJ promised not to take advantage of that breach of separation of powers (trust us!), but the breach still happened whether or not the DOJ uses the information they uncovered.
5.24.2006 6:33pm
alandry (mail):
interesting discussion here, and an interesting point was made on Orin Kerr's site. United States District Judge Robert F. Collins of New Orleans, who I believe may have been an ally of Bill Jefferson's, was convicted of bribery some years ago.Pursuant to warrant, his chambers were searched and incriminating evidence- I recall money but perhaps papers as well-were seized.I recall no separation of powers challenge to the search. Query: why could a federal judge's chambers be searched, but not a congressman's office? Is not the separation of powers issue the same?
5.24.2006 6:38pm
Angus:
How does that work, exactly? What happens - the judge goes there himself to enforce the subpoena? He sends his law clerk?

The same way a subpeona is always enforced. If the party will not hand over the material, they get held in contempt of court.

#1. I do not believe the House of Representative would have resisted a subpeona in this case, but I have not yet seen anything that says there was a subpeona against anyone but Jefferson as an individual.

#2. Even if the House did by some wide stretch of the imagination resist the subpeona, I don't think the House would ignore a Supreme Court ruling that said they had to turn over just the documents related to the crime.
5.24.2006 6:38pm
Medis:
A.S.,

"In both cases, there is material that the law enforcement personnel shouldn't be obtaining. That's what privilege is all about."

It is what a lot of things are about. Again, this isn't a common law evidentiary privilege, nor for that matter a Fourth Amendment issue.
5.24.2006 6:39pm
Angus:
Pursuant to warrant, his chambers were searched and incriminating evidence- I recall money but perhaps papers as well-were seized.I recall no separation of powers challenge to the search. Query: why could a federal judge's chambers be searched, but not a congressman's office? Is not the separation of powers issue the same?

In this example, you could argue one or both of the following:
A. The judicial branch granted permission to search one of its own members.
-and/or-
B. There is no language in the Constitution even vaguely giving judges protection against inquiry into their judicial activities.
5.24.2006 6:44pm
PersonFromPorlock:
John Herbison: hmm, and here I thought Inokittisamoc was somewhere in Nunavit! :^)
5.24.2006 6:46pm
alandry (mail):
well, yes, but as you've discussed here, bribery is not one of his activities, nor is it a legislative activity of Jefferson's. And in his chambers are, one would assume, privileged documents involved in litigated matters. I just can't see the counter argument as very strong; I don't see how legislators get a pass when judges do not.
5.24.2006 6:51pm
Medis:
Angus,

But in United States v. Nixon, the Supreme Court was only dealing with a broad assertion of a Presidential privilege that was not grounded in any specific clause of the Constitution, nor based on any specific ground for confidentiality (such as the need to keep military or diplomatic secrets). And the Court merely held that the President did not have such a broad and absolute privilege.

I don't think that holding necessarily applies to the Speech and Debate clause. First, Nixon didn't have such an explicit clause to rely on, and Congress would not similarly be relying on general separation-of-powers arguments. Second, insofar as the protections of the Speech and Debate clause are limited to inquiries into legislative acts, and not, say, all communications by members of Congress with their staff, it is more limited than the Presidential privilege claimed by Nixon.

alandry,

I'd give a similar answer to your question. Assuming papers related to the judge's judicial acts were seized, the case would still be distinguishable by the lack of something equivalent to the Speech and Debate clause in Article III.
5.24.2006 6:57pm
Wintermute (mail) (www):
Again, there's a lot of back and forth here. I like simple principles like "no one is above the law."

But in the referenced piece, I found this statement ludicrous (bitter LOL):

Gonzales said at a Justice Department news conference. "I ... and the department have a great deal of respect for the Congress as a coequal branch of government ..."
5.24.2006 7:03pm
Medis:
alandry,

We cross-posted, but as noted above, the Supreme Court has agreed that bribery is not a legislative act, but has held that bribery inquiries need not go farther than showing that the member of Congress accepted money in exchange for a promise to perform an official act. The Supreme Court has maintained that the Speech and Debate clause prohibits a bribery inquiry from extending to whether the member of Congress actually fulfilled that promise, at least insofar as such an inquiry would involve examining the legislative acts of that member of Congress.

I suspect that is not the case with judges, meaning I think one could look at whether a judge did in fact fulfill any promise that were made in the course of being bribed. And the explanation for the difference is that the Constitution does not contain the equivalent of the Speech and Debate clause for judges.
5.24.2006 7:06pm
srp (mail):
Well, I think we can now say that Medis is not a separation-of-powers buff but a congressional supremacist.

The Constitution defends the separation of powers by prohibiting executive investigation of legislative "speech and debate." We don't want someone to get arrested or be investigated because of what they say in floor debate or during committee hearings. That's a way of preserving the public legislative process. The protection goes to the subject of the investigation--it says no investigation "for" speech and debate--not to the means used to prosecute the investigation. I'd be surprised if the Framers ever considered that a representative would be immune to search warrants, at home, in a district office, in the Capitol, or anywhere else, so long as the activity being investigated was not speech or debate.

The Supreme Court apparently has seen fit to invent various emanations and penumbras having to do with papers and work product; these strike me as misguided, but not germane in this case, anyway. Given a judicial warrant, the judiciary's emanations and penumbras evidently were not violated in this case; or, if the district court was in error, the appellate courts can make still more new law to immunize representatives from criminal accountability. This all looks like the standard back-and-forth jockeying among the branches.

It's a good idea to have a norm that the executive branch should not casually send its agents into the Capitol. But that should be a customary or political norm; it shouldn't legally override the process of obtaining and executing search warrants investigating non-speech acts.
5.24.2006 7:13pm
Christopher Cooke:
A couple points on subpoenas:

1. Enforcement: you file a motion to enforce a subpoena with the US District Court presiding over the grand jury that issued it (really, the US Attorney/FBI, but let us preserve the fiction that the grand jury issues the subpoenas). The party resisting the subpoena files an opposition. If the Court agrees that the subpoena is valid, the Court then orders the recipient to produce the records requested by the subpoena.

2. Contempt: If the recipient then fails to compy with the Court's order, the USAO can file a motion to have the recipient held in contempt of court.

3. Disregarding a subpoena: a willfully disregarding a subpoena is a misdemeanor. That is the main compliance mechanism.

4. In practice: once the Court orders the recipient to comply, I would imagine the USAO would give a copy to the House of Representatives' general counsel and police, as well as Congressman's attorneys, to ask for their assistance in ensuring compliance.

5. How can judiciary order compliance? The judiciary is the final arbiter as to what the Constitution means (Marbury v. Madison), including the Speech and Debate Clause.
5.24.2006 7:22pm
Medis:
srp,

I'd claim I am a "Constitution buff", but I suppose we all think that. For what it is worth, there are lots of areas in which I think Congress also oversteps its constitutional bounds.

Anyway, what exactly is your response to the originalist arguments used by Justice Harlan et al in construing the Speech and Debate clause?
5.24.2006 7:22pm
A.S.:
It is what a lot of things are about. Again, this isn't a common law evidentiary privilege, nor for that matter a Fourth Amendment issue.

True enough. It's a privilege based on Art I, Sec 6, rather than common law. Still don't see how the legal basis for the privilege affects the method by which documents potentially covered by the privilege are to be collected.
5.24.2006 7:27pm
Medis:
Christopher,

I agree that if the Supreme Court says that the Speech and Debate clause would allow a district court to enforce such a subpoena, then that would end the issue. But I think your Point 5 is a bit misleading, because the Supreme Court could well say that a district court did NOT have the authority to enforce such a subpoena.
5.24.2006 7:27pm
A.S.:
Also, still don't see the difference, for purposes of separation of powers, between a court issuing a search warrant and a count enforcing a subpoena. In both cases, the judicial branch is taking the action.
5.24.2006 7:32pm
Medis:
A.S.,

"Still don't see how the legal basis for the privilege affects the method by which documents potentially covered by the privilege are to be collected."

First of all, I again don't see why you think the Speech and Debate is only an evidentiary privilege, like the attorney-client privilege. Indeed, insofar as it has been held to grant immunity from civil suit and prosecution with respect to legislative acts, it obviously isn't just an evidentiary privilege.

Second, insofar as we are talking about a search and seizure, and not admitting the documents into evidence, the closest analog is actually the Fourth Amendment. The differences, however, are obvious. For example, the Fourth Amendment specifically provides for searches and seizures pursuant to a warrant. The Speech and Debate clause does not.

So, that is why the "legal basis" of what you are calling a "privilege" matters--there may be substantive differences in the relevant laws or constitutional provisions.
5.24.2006 7:35pm
Angus:
Also, still don't see the difference, for purposes of separation of powers, between a court issuing a search warrant and a count enforcing a subpoena. In both cases, the judicial branch is taking the action.

Under the warreat, executive agents will also review constitutionally protected documents in the course of their search.

Under a subpoena, the legislative branch reviews the documents and hands over only unprotected ones relevant to the criminal investigation. The executive branch does not review any protected documents.
5.24.2006 7:45pm
A.S.:
First of all, I again don't see why you think the Speech and Debate is only an evidentiary privilege, like the attorney-client privilege. Indeed, insofar as it has been held to grant immunity from civil suit and prosecution with respect to legislative acts, it obviously isn't just an evidentiary privilege.

But, as has already been established, bribery is a legislative act. Accordingly, there is no immunity to prosecution applicable here. And if all the Speech and Debate Clause were just a bar to prosecution for legislative act, we wouldn't have had this whole thread.

Instead, what is on offer from your side is that the Speech and Debate Clause is BOTH an immunity from prosecution AND an evidentiary privilege. That is, a member of the legislative branch can NEITHER be prosecuted for legislative act NOR can evidence consisting of legislative acts be used in a prosecution for a non-legislative act (such as bribery).

But since the first part of that duo (immunity from prosecution) is already off the table, all we are left with is the evidentiary privilege.
5.24.2006 7:47pm
A.S.:
Under a subpoena, the legislative branch reviews the documents and hands over only unprotected ones relevant to the criminal investigation. The executive branch does not review any protected documents.

No, I meant judicial enforcement of the subpoena. I don't see the "judicial enforcement" part in your description.
5.24.2006 7:48pm
Medis:
A.S.,

Except there are other sorts of protections involving criminal process than immunity from suit and evidentiary privileges. Again, I think the closest analog in this case would actually be the Fourth Amendement protection of searches and seizures, except the Speech and Debate clause, unlike the Fourth Amendment, provides an absolute bar to inquiries into legislative acts (with nothing like warrant clause).

In sum, I think your process of elimination argument fails, because you forgot some of the things that needed to be eliminated.
5.24.2006 8:09pm
Medis:
A.S.,

By the way, I would suggest that out of those three things--protection from searches and seizures, immunity from suit, and an evidentiary privilege--the strongest textual case by far can be made for the relevant one (protection from searches and seizures). That is the most obvious implication of the relevant verb--"to question"--although I am compelled by the originalist reasoning of Justice Harlan et al that this clause was intended to provide broad protection for legislative acts from all manner of inquiries.
5.24.2006 8:18pm
srp (mail):
I'm not familiar with Harlan's argument. The plain text of the clause (and separation of powers logic) says that no one in Congress shall be questioned "for" acts of speech and debate. So you can't be investigated for saying "Bush is a crook" or for advocating withdrawal from Iraq. I don't see that the clause offers any *evidentiary* protection at all--it's certainly not written that way, and I don't see a good reason why we would want to offer such special protection beyond the Fourth Amendment.

The executive needs to act with secrecy and dispatch and as a more-or-less unitary actor. That's why we have executive privilege and so on. Legislators need openness and publicity (except sometimes when overseeing secret security matters or the personal histories of nominees for office). The whole idea is that the people can see their business being conducted openly. One of the main reasons that the Congress can be granted so much power in Article I is precisely that it can't hide its motives and actions from the public.

If the Speech and Debate clause is turned into a shield for secret dealing by individual members or the Congress as a whole, it undermines the prescribed role of the body: To openly debate and decide upon the use of its enumerated powers in the service of our defense, propery, and general welfare. If anything, the level of privilege granted to congressional documents should be lower than those in a judge's chambers or a lawyer's files. Confidentiality is not a central prerequisite of legislation. Our national legislature isn't supposed to be able to exploit the element of surprise, for example, or to pass laws we don't know about until we're arrested for them.

I can concoct scenarios where a representative might have information we would not want an oppressive executive to get its hands on. Names of dissidents or whistleblowers, say. So I can see a scenario where the evil President (or Attorney General) gets a pretextual search warrant for a representative's office based on a bribery case, and then uses that opportunity to peek at the files and find out who the dissidents or whistleblowers are. Political rather than legal remedies are the only adequate ones in such a case, anyway, since the courts would already have granted a warrant.

The risk of such a scenario seems pretty low compared to the risk of letting representatives hide the evidence of crimes in their offices. It's pretty realistic to suppose that the internal "police" in Congress will be less than zealous in making sure that the right stuff gets handed over. Their colleagues also have an incentive to turn a blind eye. We know that not everyone in Congress is law-abiding or well-adjusted; worse, most of the time nobody is watching them very closely.
5.24.2006 8:38pm
Medis:
srp,

With all due respect, before you conclude that certain Supreme Court cases are misguided, it seems to me that you should read them first. I was referring to Justice Harlan's opinion in United States v. Johnson, 383 U.S. 169 (1966), in particular, and you can work forward and backward from there.

One thing you will discover if you start reading those cases is that you have misidentified the concerns that motivated the Speech and Debate clause, at least according to the Supreme Court. The primary goal is not to protect the secrecy and confidentiality of the communications of members of Congress. Indeed, in some cases the Speech and Debate clause was held not to grant protection to such communications precisely because the communications in question were not part of the legislative process. [I know that A.S. insists on thinking of the Speech and Debate clause as creating such a privilege, but I really think that is wrong].

Rather, the goal was to protect the legislative process from undue influence by either the Executive Branch, the Judicial Branch, or both. Specifically, the concern was the potential ability of the other branches of government to use processes of law, either criminal or civil, to intimidate or otherwise interfere with legislators in the performance of their legislative duties.

So, that is the risk the Clause seeks to avoid, and my basic point is that if agents of the Executive Branch, with or without warrants, can enter congressional offices and seize legislative documents, that concern has been triggered.
5.24.2006 9:01pm
Zach (mail):
Medis:

requoting the paragraph:

Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall 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 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.

The paragraph draws no distinctions as to whether the privilege is exerted against the Executive, Judicial, or Legislative branch of government, but the wording clearly refers to these privileges as being individual rights applicable to the individual Senators and Representatives.

In your reading, it would seem that the individual offices of the Congressmen could not be searched, even by the Capital Police or other agents of Congress. The policy rationale against intimidation would naively seem to work just as strongly against majoritarian cliques in Congress as against an overbearing Executive. (It's not hard to think of a super HUAC that would go after members of Congress, for example.)

So given that you don't believe that felony, treason, or breaches of the peace can waive the privilege, but do believe that all work products are protected as "speech or debate", are we forced to conclude that any area likely to contain a Congressman's work product is inviolate against any search?
5.25.2006 12:19am
Angus:
The executive needs to act with secrecy and dispatch and as a more-or-less unitary actor. That's why we have executive privilege and so on.

Please, pray tell, show me where the President is granted executive privilege in the Constitution.

Strange that you want a narrow interpretation of Article I, but a broad interpretation of Article II.
5.25.2006 1:11am
Medis:
Zach,

I actually don't think the text of the Clause requires us to view it as providing an individually-held right or privilege. Obviously, the clause does seek to protect members of Congress from certain possible actions, and members of Congress are necessarily people, and thus collectively subject to the pronoun "they". But I would suggest that the fact that the protection of the Clause is afforded to these people collectively referred to as "they" does not necessarily imply that the protection is an individual right or privilege. And interestingly, while the Arrest clause specifically uses the word "privileged", the Speech and Debate clause does not.

Anyway, my assumption is that a House could require disclosure of legislative documents held by an individual member of the House pursuant to Section 5 ("Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."). I can't say I know of any specific authority for that proposition offhand. Still, consider a straightforward example: I would suggest that the Speech and Debate clause would prohibit a member of Congress from being prosecuted or sued for giving a "disorderly" speech on the floor of their House. But I think the House itself could punish that behavior. In that sense, I think it is clear that the Speech and Debate clause cannot be taken to protect members of Congress from Section 5, because Section 5 clearly applies to speech and debate by members of the House in even the most straightforward sense.

Incidentally, as I have noted many times above, I am not claiming "any area likely to contain a Congressman's work product is inviolate against any search". Rather, I am claiming that agents of another branch cannot actually seize and review legislative documents protected by the Speech and Debate clause from a member of Congress. Conversely, as I have also noted many times now, a search of a congressional office may not raise this issue provided that the search did not require the FBI to seize and review legislative documents.
5.25.2006 6:39am
Medis:
By the way, there are a couple interesting stories on this issue in the Washington Post. On the exhaustion issue:

"Justice officials have declined to specify publicly what steps had been taken previously to attempt to force Jefferson to turn over the records held in his House office. A subpoena was issued in August, around the same time that investigators searched Jefferson's New Orleans home and D.C. apartment.

But Jefferson and his attorneys resisted the subpoena for materials from his office, asserting his Fifth Amendment rights against self-incrimination, according to sources familiar with the case. In an attempt to break the logjam, prosecutors filed a sealed motion in federal court in Alexandria against Jefferson's chief of staff, as keeper of the records, who is being represented by the House counsel's office, said a Justice official, speaking on the condition of anonymity."

So far, at least, it sounds like the DOJ actually did not go to the Clerk of the House to seek aid in obtaining the documents. Rather, they appear to have acted only against Jefferson and his staff. I also suspect, without knowing for sure, that what Tom was apparently told was a garbled reference to the House counsel's office representing Jefferson's chief of staff. But hopefully more details will come out.
5.25.2006 7:15am
abb3w:
Zach: this is why I'm not even trying to be a lawyer; bad memory for certain critical points of law. It sounds like it will get to the supreme court to referee the executive/legislative dispute, and will probably hand down another US v. Nixon style decision that no-one is above the law. If we're lucky, they'll emphasize that the warrant was what made it kosher, to keep the executive from getting even more power-bloated.
5.25.2006 9:52am
A.S.:
Except there are other sorts of protections involving criminal process than immunity from suit and evidentiary privileges. Again, I think the closest analog in this case would actually be the Fourth Amendement protection of searches and seizures

BTW - I forgot to mention it last night, but I wonder if Medis could explain to us where in the caselaw he gets this idea that the Speech and Debate Clause includes some kind of protection against search and seizure. Take United States v. Johnson, for example. I speaks directly to the two issues that I mentioned: immunity from prosecution and an evidentiary privilege. But there is nothing in it at all that discussed protection against searches and seizures. So, I'm wondering if he can point me to the caselaw that supports his assertion that the Speech and Debate Clause includes protection against search and seizure, as opposed to (i) a bar against prosecution for legislative acts and (ii) an absolute privilege against the use of certain evidence (consisting of legislative acts) in prosecutions for acts that are not legislative.

I haven't read all the cases, but the few that I have read, such as Johnson, don't discuss the search and seizure issue at all.
5.25.2006 10:51am
Zach (mail):
Well it has to be an individual right or privilege because only an individual can draw compensation, or be arrested, detained, or questioned.

I think by inserting the Executive vs Legislative distinction which is not present in the text you're substituting your analysis for why the paragraph exists for what the paragraph actually says, and weakening the paragraph in the process.

Think of my example of Super-HUAC. As written, Super-HUAC would not be able to question individual congressmen about acts relating to legislation. In your reading, I'm still unclear.

Rather, I am claiming that agents of another branch cannot actually seize and review legislative documents protected by the Speech and Debate clause from a member of Congress. Conversely, as I have also noted many times now, a search of a congressional office may not raise this issue provided that the search did not require the FBI to seize and review legislative documents.

The distinction between searching and reviewing is much too subtle for me to follow. Can the searchers open file cabinets in the office, or not? Can they look through collections of papers to find the ones they want, or not? Does the violation come when they take some papers off site which would be legal to search/review on site?
5.25.2006 11:35am
Medis:
A.S.,

I answered your question in the other thread as well. Very briefly, I think the conclusions I have suggested can be drawn from the Supreme Court's construction of the Speech and Debate clause, but I agree that this would be a matter of first impression for the Court--indeed, it seems to be an unprecedented issue in general.

Zach,

First, again, I think you are conflating different clauses of Section 6. The same analysis need not apply to the Compensation clause, the Arrest clause, and the Speech and Debate clause. Second, I don't think the fact that a protection applies to individuals means that it constitutes an individual right or privilege.

I also agree that Section 6 itself says nothing about what a House could do with respect to its own members. But Section 6 can't be read in isolation, and I think there is only one logical reading of Section 5 and Section 6 together. And holding aside the issue at hand, are you really contending that Section 5 would not apply to speech and debate in the Houses? That would be a pretty extraordinary claim, I would think.

Finally, I don't think the FBI could seize control of a congressional office, exclude everyone else, and start reading through the file cabinets. The example I suggested above is something like the FBI searching a congressional office safe for marked money. In such a case, I don't think the same Speech and Debate clause issue would arise.
5.25.2006 12:14pm
Mr. X (www):
Medis said:
At some point, this Administration seems to have forgotten that the Constitution is the supreme law of the land, and not just one of many factors that should be balanced against other factors.


In fairness, Rehnquist forgot it first, with his penchant for "balancing tests."
5.25.2006 12:58pm
Medis:
Mr. X,

Although to be fair, sometimes the Constitution itself implies a balancing test of some sort (reasonable searches and seizures, due process of law, and so forth). But in those cases, the Constitution is dictating the balancing test, not being subjected to a balancing test.
5.25.2006 1:14pm
A.S.:
That's not always true, Medis. After all, the text of the First Amendment doesn't provide for a balancing test, and yet there is one.
5.25.2006 3:20pm