[UPDATE: The comments have been very interesting; I have a post on a plausible, though limited, answer here.]
I confess I'm pretty puzzled by Speaker Hastert's theory here. I understand that the power to arrest, search, and prosecute Congressmen could be abused by the Executive. But I take it that Speaker Hastert isn't arguing that Congressmen can't be prosecuted, or even can't be prosecuted for bribery. (Actually, Justices Douglas, White, and Brennan seemed to take the latter view in United States v. Brewster (1972), at least as to the selling of legislative acts; but they lost, and I hadn't heard of anyone trying to revive this position.)
Is it that Jefferson could be prosecuted, but his office couldn't be searched? If so, what exactly is the constitutional basis for the distinction? For now, my tentative view is the same as Orin's — there's no constitutional problem here — but perhaps I'm missing something.
If you have some thoughts about the constitutional issue, either for or against the argument that the search was impermissible, please post them. Please stay away from general speculation about the politics or ulterior motives of the matter; such speculation may be quite interesting, but I just want to keep this particular discussion thread focused on the constitutional question.
A wild guess -- some sort of extension of the Speech and Debate clause? If Congressmen may not be prosecuted for what is said in their official functions, that substantive limit creates some ... penumbra? ... that protects official documents and the content of their offices. (Straining mind for a REAL stretch)... the Constitution deprives the legislature of its favorite weapon against the executive (a bill of attainder, useful for shortening careers of the royal counsellors), and the executive of its favorite weapon against the legislature (prosecution for seditious/treasonous speech on the floor). The Court has held the bill of attainder limit also applies to legislation firing someone, which is rather milder and different from what a bill of attainder did. Ergo, the speech and debate clause can be similarly extended...
.... Nah, it flunks the Red Face Test.
I really do not see the constitutional issue here and the argument that was raised by Hastert makes absolutely zero sense, at least in the version of reality I live in.
So, my suggestion is that whether this search of Jefferson's office and seizure of documents was barred by the Speech and Debate clause depends on whether it constituted an "inquiry into acts that occur in the regular course of the legislative process." And my basic proposition is that insofar as the government agents seized legislative documents (things like committee reports, proposals for legislation, and so on), the search violated the Speech and Debate clause. And finally, I think that is true even if the government promises not to give those documents to the prosecutor, or otherwise to use them as evidence in their bribery case against Jefferson.
Finally, I might note that I think that this view accords with the remedy Hastert et al are asking for--namely, the immediate return of the documents.
a) that the burden to be met before issuing of warrants is way too low, and should be raised. Such a rule might produce interesting ripple effects as the uppity peasants begin asserting such defenses themselves.
b) that congresspeople and other VIPs deserve special consideration (or even immunity) because they occupy the legislative branch. This would avoid producing a rule that might protect the peasants from LE intrusions Congressmen approve of. Of course it also places congressmen above their own laws.
Actually, neither of these arguments make sense either. Why does Hastert even care about the Jefferson case?
But I would suggest that this procedure does not address the Speech and Debate clause problem, at least as the Speech and Debate clause has been interpreted by the Supreme Court. Again, as I noted, it seems to me that the inquiry into legislative acts has occurred once the agents have seized and reviewed documents protected by the Clause, even if they do not then turn over those documents to the prosecutor.
Shouldnt Speech and Debate only protect congressmen to the extent they arent committing serious crimes under the cover of their office? If the exclusionary rule is good enough for us peasants, it should be good enough for congress.
I really don't think so. I think that Hastert, Boehner, and other congresscritters are actually just expressing inchoate shock and awe, or outrage, at the event. Theirs is not unlike the reaction I've heard from criminal defendants who harbor profound misconceptions about the law. Just for example: "That's entrapment! I asked him if he was a cop and he said he wasn't."
There is little in either Hastert's or Boehner's statements except sputtering and blustering that the sanctity of the legislative process had been invaded by the executive:
Both seem to have forgotten the sentence that precedes the speech and debate clause. As the court in Brewster reminds us:
Truth is, though, that the court in Brewster slightly overstates the exceptions in Art. I, Sec. 6. It privileges everything but "Treason, Felony, and Breach of the Peace". So, Chimpy McHitlerBurton's (or some future Che Clintonista's) Dep't of Injustice couldn't have the Congressional opposition all arrested for unpaid parking tickets before some important vote.
I use the derogatory presidential names to point out more starkly the actual executive incursions on legislative process that Sec. 6 was writteen to protect Congress (and the rest of us) from.
According to the Supreme Court, the Speech and Debate clause was designed to protect the legislative process from the risk that the Executive and/or Judicial branches would seek to use legal processes, civil or criminal, to intimidate or otherwise interfere with legislators. The Clause thus does give legislators more protection from certain legal processes than ordinary citizens, albeit only within the limited scope of their performance of legislative acts. In short, if you think providing legislators with that extra protection from legal processes was a bad decision, your complaint is with the Framers of the Constitution.
Fortunately, there is an alternative to the FBI executing search warrants and seizing legislative documents. As we discussed in the other thread, the DOJ's Criminal Resource Manual states:
"In addition, 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. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. 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."
Accordingly, if the government suspects that an individual member of Congress is hiding unprotected documentary evidence within protected documents, I think that the government could ask the relevant House for aid. In a case like Jefferson's, I would suggest that the relevant House could provide its own "Filter Team", providing only those documents that were not protected by the Speech and Debate clause to the prosecutors. And apparently such requests are rarely refused.
Incidentally, other have noted that this is how the Executive Branch deals with congressional subpoenas. In other words, the President doesn't allow agents of Congress to seize documents from Executive Branch offices, even if Congress promises to filter out and return documents that are privileged. Rather, the Executive Branch filters its own documents in response to congressional subpoenas. So the idea that Congress would have a similar ability to "self-filter" its documents is not so strange.
Not above the law. Just entitled to clean up a bit before any law enforcement searches authorized by the other two branches.
Perhaps this is an unrealistic option, but why should the courts have to get involved when Congress can solve the problem itself?
Hmmm ... if they were capable of being destroyed quickly (say on a hard drive), would a no-knock warrant be justified?
Frankly, if the FBI arrested 47 members of the House for bribery (reasonably agnostic of party), Bush's poll ratings would skyrocket.
I just don't understand this "own goal" by Hastert. During a penalty kick, at that.
This is the silliest creation of an ad hoc right under the "Living Constitution" I have ever seen. The FBI owns computers and its agents have Internet access. If FBI agents need "legislative documents" of the kind protected by Medis' outcome-oriented rule, they can visit thomas.loc.gov.. Medis is therefore proposing a constitutional protection that (1) protects nothing; and (2) is entirely irrelevant to the present debate.
According to Professor Lederman, I believe you are wrong, because Congress has inherent power under the Necessary and Proper Clause to negate any and all Executive power with a voice vote.
No they cannot. Internal memos and deliberations are not posted on the web any more than are the internal memos and deliberations in the White House.
The legislative process is persecution, not prosecution. Even if Congress found some basis for criminal prosecution, it must refer the matter to the DoJ for prosecution.
The proper question is whether the executive branch is permitted to filter its own paper in response to subpoenas and search warrants issued by the Justice Department in the course of investigating alleged criminal activity. And whether the judicial branch is.
This is frankly one of the dumbest things that I have seen from Congress for a long time - requesting that the courts return incriminating evidence against a member who was video taped taking a bribe, and then was found to have some $90k in marked bills wrapped in foil in his freezer so the bundles would look like left overs. This is a lose-lose for Congress, and, in particular, the House Leadership.
Yes, returned. The privilege cannot exist if the investigators sort the incriminating documents and non-incriminating documents into different piles and then return the non-incriminating pile of documents.
"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."
"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 House is secretly investigating the Executive. Some House members have placed secret files on this investigation in their Congressional office, probably under lock and key.
A leak developes that this investigation is on going and files containing information is being secreted in House members official office files.
What would prevent the Executive from raiding those offices, even with a search warrant, in order to remove those files?
If the three branches of government are only seperate but equal when the Executive decides they are, then the constitution is a&&wipe, and should be used as such.
I dunno if even that is necessary. The speech and debate clause is not like the fifth amendment.
Hmm... oh, this is delicious. The clause says that members may not, for any speech or debate "be questioned" in any other place.
Now... the prevailing interpretation of the self-incrimination clause is that, since it refers to being made to be a "witness" against yourself, it only protects "testimonial" acts -- and not being forced to give, oh, DNA, breath samples, etc. I should think that with equal force one might argue that "questioned" is limited -- altho the historical arguments suggest that questioned includes bing prosecuted -- and certainly "speech and debate" does not include grabbing a bribe while not speaking.
Suppose we should check out a cookbook, to see if there are difference sauce recipies for gooses and for ganders....
Oh, wait. Brewster knocked all of that into a cocked hat. If they are hoping to revisit that, I wonder how they get past stare decisis. After all, it came a year before Roe, which about half of them think is settled....
Whether the Constitution agrees in letter, in this case, clearly no one has any idea about, since nothing like this has ever happened before.
But if this was a mistake, it wasn't the executive's... it was the judiciary's. Of course the executive will seek a warrant; it's up to the judicial branch to decline if it's unconstitutional. Right?
First, thanks for the recognition. Anyway, I think Brewster makes it clear that even documents which substantiate bribery could be protected by the Speech and Debate clause, as long as they fell within the scope of legislative acts. But again, Brewster holds that such an inquiry is not necessary in order to prosecute bribery.
Lev,
If the issue is one of separation of powers, then I don't think the right parallel is how the Executive Branch responds to DOJ requests/demands for information. How the Judicial Branch deals with such requests/demands would be closer, although Article III contains no equivalent to the Speech and Debate clause.
But I still think the parallel to congressional subpoenas is fair. Of course, the primary purpose of congressional subpoenas is neither prosecution nor persecution. Rather, as the Supreme Court has often observed, it is essential to the ability of Congress to conduct the business of lawmaking that Congress be able to gather information. In that sense, just as the Executive Branch uses subpoenas and warrants to further its core purpose--executing the laws--Congress uses subpoenas to further its core purpose--making the laws.
Bruce,
I believe Hastert (and Pelosi) want the FBI to immediately return all of the seized documents without first reading them. And I think that request does speak to the harm the Speech and Debate clause seeks to prevent: if the FBI can seize legislative documents from a member of Congress, review them, and then return them at its convenience, the fact that the documents were eventually returned does not change the fact that the violation of the Speech and Debate clause has already occurred.
Dave Hardy,
In what I believe is the first Supreme Court case construing the Speech and Debate clause, Kilbourn v. Thompson, 103 US 168 (1880), the Court cited Justice Story's Commentaries, and held: "It would be a narrow view of the constitutional provision to limit it to words spoken in debate. 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." So, from early on, some written documents have been considered as being within the scope of the Speech and Debate clause.
Insofar as I am right that this principle would apply to the seizure of such legislative documents (in Kilbourn the issue was immunity from civil suit), there really isn't an equivalent under the Fifth Amendment right against self-incrimination (ie, incriminating documents can be seized). Again, though, the Speech and Debate clause manifestly was intended to grant members of Congress protections not enjoyed by all citizens, albeit only within the limited scope of their performance of legislative acts.
By the way, Brewster does make it clear that "grabbing a bribe"--taking money in exchange for a promise to perform an official act--is not a legislative act. But Brewster also holds that the government could not then inquire into whether that promise was fulfilled through a legislative act.
Kevin,
I'm repeating myself, but Brewster was a complicated decision. As I have suggested, I think Brewster actually provides support for Hastert et al insofar as the FBI seized legislative documents, despite the fact that the FBI was investigating bribery.
randal,
I perhaps should also make clear that as far as I know, this is an unprecedented case, and therefore all of these arguments require one to take the Supreme Court's general construction of the Speech and Debate clause and apply it to new facts. Still, as I expressed elsewhere, it seems to me that it is actually much more straightforward to apply the Speech and Debate clause to a case of the government seizing and reviewing legislative documents than to a case in which a member of Congress is sued or prosecuted on the basis of those documents (the former being more directly like "questioning", and even more directly like "inquiry", which is how the Supreme Court has construed "questioning"). Indeed, the reasoning of the Supreme Court sometimes seems to suggest that such a prosecution or suit cannot go forward because it would necessarily require "inquiry" into legislative acts, and in that sense I would suggest the immunity from prosecution and suit is actually derived from this protection from inquiry.
Incidentally, the Supreme Court has noted that the Speech and Debate clause also protects Congress from abuse of legal process at the hands of a "hostile" judiciary, perhaps working in concert with the Executive Branch. Of course, it would in fact ultimately be up to the Supreme Court to determine if this search was unconstitutional, but that doesn't necessarily mean that the participation of the District Court in granting the warrant alleviated the Speech and Debate clause problem. And as yet, we do not know what, if anything, the District Court actually thinks of this issue--it may not have occurred to the District Court at the time of granting the warrant.
Hastert has already WON the broader "Speech and Debate" Constitutional argument. Even the Department of Justice acknowledges this.
1. The search warrant included a lot of references to it.
2. The Attorney General in public comments said that, yes, during the search his agents were going to have to review documents which they are Constitutionally prohibited from reviewing.
3. The DOJ Criminal Policy Manual has a section *specifically* about investigating Congressmen for bribery. The DOJ's conclusion was that most of a Congressman's documents are protected by the Constitution from review by the executive, and that if a Congressman will not comply with a subpoena for criminal evidence, agents *MUST* seek the release of that evidence through the Congress as an institution. Those are the DOJ's conclusions, not mine.
The question in this case, then, is whether the "safeguards" constructed in this search are sufficient. And the "safeguard" here seems to be that the executive has set up a super-special filter team of executive agents to review the materials they are constitutionally prohibited from reviewing. But this super-special team of executive agents promises to try and not remember anything they see except what is related to the bribery. They promise with gumdrops on top.
"The issue could turn on whether a court finds that the items seized from Jefferson's office were related to such protected legislative activities as writing, researching and voting on bills. Other things could be fair game for the prosecution, analysts said."
That seems right to me, of course. And as we discussed here and elsewhere, the key issue may be whether the Speech and Debate clause allows FBI agents to seize large quantities of documents from a congressional office, have a "Filter Team" review the documents to see if they are protected or not, and then have the Filter Team not provide protected documents to the prosecutor.
And at this point, at least, I think this is a nonfrivolous issue of first impression, and one that is ultimately worthy of Supreme Court consideration.
To be precise, the Criminal Resource Manual states:
"In addition, 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. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. 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."
In context, I don't think it is clear whether the "must" in question is a legal must, or a practical must (the latter meaning that because the Senate and House have reached this conclusion, in practice the DOJ must present their request to the relevant Chamber).
But obviously we agree about the key issue. It is just that as far as I can tell, this exact issue has not yet been tested in court.
I'm a little hazy on this, but doesn't the President traditionally ask permission from Congress to enter the House for the State of the Union address, precisely in respect of that independence? Suppose that instead of waiting for permission, He got a court order requiring Congress to listen to the SOTU at a time and place of his choosing? Would anyone doubt that the status of Congress as a 'co-equal' branch of government had been harmed?
By not going through the Congress's own procedures, or even coming to a dead stop if it so willed, the President (through the FBI) has committed just such an act of 'riding roughshod' over Congress. Statutary law must be obeyed, but not at the cost of violating the fundamental Constitutional provision for separate-but-equal branches.
Consider the English Parliament, which to this day slams the door in the face of Black Rod when the Queen calls them to hear the Speech from the Throne. Black Rod is required to knock three times, why? Because the Crown had a knack for rummaging and rampaging through Westminster, that's why. Because the House (of Commons) guarded jealously its ability to function within its own chambers and ancillary offices.
It goes back to at least 1642 when Charles I tried to arrest 5 members of the House of Commons on what amounted to trumped up charges. No one denied that the King or his officer could with "righful authority" or "lawful authority" enter in the House, but by the same token the House (of Commons) preserved to itself at the time and ever after the right to question and challenge on behalf of itself as a body and by extention its individual members.
Consider this House Judiciary committee hearing then to be an after-the-fact challenging of the executive's actions as conducted through its officers and I believe you can find a much better understanding of what is going on here.
Art 4 Sec 3 Para 2 of the Constitution says: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. Could this be the actual (or more applicable) basis for these complaints? Granted the notion of Property is pretty nuanced and Art 4 deals primarily with interactions with State governments, but it conceivably could include Legislative Branch office space and the contents thereof.
The second thought is jurisdictional. Could it be that Congressional officespace have been set aside as solely within the jurisdiction of the Capitol Police. Thus the FBI executing a search in Jefferson's office is somewhat akin to the Texas Rangers executing a search of an office in Tulsa that would properly be performed by Oklahoma authorities. Might the idea of an FBI search on an Indian Reservation or other tribal lands run afoul of similar concerns? Or the GAO rifling through offices in the White House w/o Executive permission?
I seem to faintly recall a few years back that Sen Byrd was pulled over for speeding (on his return to DC) and got some grief in the press for claiming (while accepting the citation) that actually they had no right to pull him over because he is a Federal Legislator returning to the Capitol. The tale I think had him whipping-out a pocket-sized Constitution booklet. Perhaps Byrd was relying on a similar theory ... or this could've been an Urban Legend.
We agree, I think, that under the relevant cases, the Speech and Debate Clause includes at least two things: (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 (such as bribery).
However, Medis asserts that there is another aspect to the Speech and Debate Clause: some kind of protection against search and seizure. Can he point me to the caselaw that supports the idea that the Clause includes that protections (as opposed to the bar against prosecution and the evidentiary privilege)? I haven't read all the cases, but the cases I have read, such as United States v. Johnson, don't discuss protection against search and seizure at all.
I also think that A. Nonymous has come up with the way that it can win in the Supreme Court. Before, I was unconvinced by Medis' and others' Speech and Debate clause arguments. But this is a good way to give Congress a win here, which, as I suggested before, I expect, in order to balance a win for the Executive in the NSA international surveilance matter.
The problem that I saw with the previous arguments is that they were so absolutist, when there is some evidence that the FBI went to fairly good lengths to protect actual judicial papers. And the answer for such an absolutist answer to this situation is, just that, that it came from the Brits, and that the executive (then the King) at one time had routinely rifled through the papers of Parliment.
I would suggest then that the Speech and Debate clause is only a means to an end. What is really going on is that Congress has traditionally controlled the Capital and adjoining office buildings. This is their territory, and pretty much theirs alone. The Executive has come barging in without an invite or permission. Sure, they got permission (in the form of the warrant) from the Judiciary, but that is just like your next door neighbor giving permission to the guy two doors down to go into your house.
The Court in Brewster explains how bribery can be prosecuted under the relevant statutes without requiring an inquiry that would ordinarily be barred by the Speech and Debate clause. So, I don't think you can take those statutes as some sort of implied congressional waiver of whatever protections the Speech and Debate clause provide in bribery investigations.
A. Nonymous,
That is indeed the sort of originalist history upon which Justice Black and others have relied in construing the Speech and Debate clause, and I agree that it makes for a pretty compelling argument.
alandry,
Obviously, both the government and the District Court were aware that some of the material seized by the government could be barred from use by the prosecutor by the Speech and Debate clause. From the excerpts I have seen so far, however, the government did not discuss the constitutionality of the search and seizure itself. But if you have a link to the whole affidavit, that would be great.
A.S.,
I actually already answered your question in a comment above, but to summarize, it does in fact appear that there is no case that addresses the issue of to what extent the Speech and Debate clause applies to searches and seizures--which makes sense, because it seems that this sort of factual scenario has never occurred before. As I suggested above, I think the Court's general construction of the Speech and Debate clause supports the necessary conclusions, and I also think that this is actually an easier case than the ones that the Court has addressed (related to immunity from prosecution and the use of legislative materials as evidence). But if you are suggesting that there is no directly controlling case on the issue, and thus that this would be a case of first impression for the Supreme Court, then I agree.
Not to sound defensive, but I never claimed to articulate a complete argument for the Supreme Court's construction of the Speech and Debate clause. Rather, I kept trying to direct people to the relevant Supreme Court cases, and I briefly summarized what I thought they would find once they did so.
And I would repeat the same advice now. If people haven't yet read at least Johnson and Brewster carefully, they really should, because those cases provide the Supreme Court's reasoning and holdings on a lot of the issues that we are addressing here.
1) Is there a constitutional reason for a HEARING by the House Judiciary committee on this subject? Darn right there is, even if the result is that this was ok, it is still as an institutional matter good form and a good idea to reassert that the chambers of the legislature are not to go running pell mell through by the executive. See Black Rod. QUESTIONING and CHALLENGING the authority of the executive in the legislature is always a good thing. Keep in mind too that many/most states continue the practice of INVITING the Executive. Again, there's for centuries been an institutional instinct to say the executive has no business being in there. One further point, there was a parliamentary minor altercation a few years ago when the President's messenger entered into the House floor and failed to bwo three times (once at the door, once in the door and once when addressing the Speaker). The President's guy/gal only thought it was necessary twice. This sounds like a lot of sound and fury signifying nothing, but signifies what I am talking about here, namely the HISTORICAL development of a CONSTITUTIONAL understanding of seperation of powers that took itself from the English Parliament (Charles I arresting members of the House in the House, etc.) colonial development (Governors seizing the papers of the colonial houses) and state practice (governors are INVITED, they have no "rights" to chambers of the legislature any more than they have a "right" to the chambers of a judge).
2) Having said all that there is a second question: is there a constitutional reason for denying access under speech and debate, separation of powers or some other argument? Here I will admit I do not know for sure, and I see the debate rages on. But I am not quite as inclined as others to dismiss the idea out of hand for the reasons listed above. The existence of a constitutional argument against the actions of the FBI is at least an open question. If it turns out the speech and debate clause or common law and historical development of the privileges of the House are not harmed by the FBI search, ok. But there's at least a plausible argument to be made they do in fact run afoul and it should be vetted.
P.S. To return to a point I made previously elsewhere: I would say the same thing about two branches ganging up on the inner workings of a third (in this case Executive and Judiciary vs. Legislature) than I would if the situation was reversed. What if the Legislature and Judiciary ganged up on the Executive to find his/her inner workings? We have executive privilege. What if the Executive and the Legislature ganged up on the Judiciary to find the judges inner workings? We have in camera protections that FORBID the Executive or Legislature from asking ro prying into a judge's deliberations.
(By the way, for those of you who claim speech and debate does not include the offices of the Rep/Senator, does that mean because there is no express constitutional provision forbidding the Executive or Legislature park its people in the judge's chambers that makes it ok? This is not an entirely rhetorical question.)
Does anyone here REALLY think it wise to allow two branches to run into the third's inner workings when they want to work in tandem to do so? Some may think it is ok, others may not.
Thank you very much for the link. Incidentally, I hope it is clear I have absolutely no inclination to defend Jefferson personally--indeed, in light of Brewster, it seems to me that the evidence we know about already is probably sufficient to convict him. For that matter, I have no particular love for Congress (this Congress, or Congress in general). But I find the constitutional issues very interesting.
Although the issue in Johnson was different, I thought I would bring over some of the reasoning in that case, because I think it helps demonstrates the connection between your various points. As per Justice Harlan:
_________
The Speech or Debate Clause of the Constitution was approved at the Constitutional Convention without discussion and without opposition. See V Elliot's Debates 406 (1836 ed.); II Records of the Federal Convention 246 (Farrand ed. 1911). The present version of the clause was formulated by the Convention's Committee on Style, but the original vote of approval was of a slightly different formulation which repeated almost verbatim the language of Article V of the Articles of Confederation: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress . . . ." The language of that Article, of which the present clause is only a slight modification, is in turn almost identical to the English Bill of Rights of 1689: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." 1 W. &M., Sess. 2, c. 2.
This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature. See, e. g., Story, Commentaries on the Constitution 866; II The Works of James Wilson 37-38 (Andrews ed. 1896). . . .
Even though no English or American case casts bright light on the one before us it is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits . . . but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary. In the notorious proceedings of King Charles I against Eliot, Hollis, and Valentine, 3 How. St. Tr. 294 (1629), the Crown was able to imprison members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment. Even after the Restoration, as Holdsworth noted, "[t]he law of seditious libel was interpreted with the utmost harshness against those whose political or religious tenets were distasteful to the government." VI Holdsworth, A History of English Law 214 (1927). It was not only fear of the executive that caused concern in Parliament but of the judiciary as well, for the judges were often lackeys of the Stuart monarchs, levying punishment more "to the wishes of the crown than to the gravity of the offence." Id., at 214-215. There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause. In scrutinizing this criminal prosecution, then, we look particularly to the prophylactic purposes of the clause.
_________
Fun stuff (and I would applaud if someone had the guts to argue directly to an Article III court that it was in danger of acting as a "lackey of the crown"). I've omitted footnotes, but they contain further citations and additional history.
Nick
This reminds me of another FBI and criminal case, involving Judge Robert Aguilar of the US District Court for the Northern District of California. During the FBI's investigation, the FBI Agents asked Judge Stanley Weigel of the same court to wear a wire to the judges' dining room, to get Aguilar to say something about a favor he had been asking from Weigel. Weigel was furious, and said he would speak to the FBI Director (then, ironically, ex Judge William Sessions). I think all branches want to guard their "turf," which is why we now have the rare spectacle of Speaker Hastert and Minority Leader Pelosi writing a joint letter to the President.
My guess is that the search was improper. Otherwise, why can't the Congress order the Capitol Police to seize evidence from the White House whenever one of its subpoenas has been ignored? Or, more realistically, ask a US Judge to order the US Marshalls to seize such evidence?
This is a clear case of overreaching by the DOJ, which could have used the appropriate channels to enforce its subpoena, but didn't want to do so, and instead, sought to short-circuit the process with a search and seizure.
My argument would be, as for why the "search" was improper, was that it could not seek admissible evidence, if it sought records protected under the Speech and Debate clause, and therefore didn't seek evidence of a crime.
As for the Judge signing off on it, it is hardly fair to say that a one-sided presentation in the FBI's search warrant affidavit on the Speech and Debate clause, without giving Congress a chance to weigh in with its brief, much less Jefferson, is the equivalent of having full briefing on the subject.
Also, for the uninitiated, I bet the DOJ waited until a DOJ "friendly" judge was presiding over the federal grand jury before it presented the search warrant affidavit to the Court. Prosecutors routinely seek to manipulate which judges hear their cases and search warrant affidavits.
Are these just two unrelated texts that happen to be on one page? If so, then I think the government could ask the relevant House to provide a redacted document with just the menu.
That's why the FBI has never raided Congress, not during ABSCAM, not during the Duke Cunningham scandal, not during the Alan Clayton Powell investigation, not while investigating Dan Rostenkowski, and not during any of hundreds of investigations over the last 200 years.
As the Majority Leader said, "someone over there needs to read the Constitution." Would the FBI / President abuse this power? Undoubtedly. The false leak to ABC about a Hastert investigation is a great example of the FBI's thinking. (Congress actually runs its own power plant, to avoid giving any state or local power provider similar leverage).
One must admit that the comic value of such antics is priceless.
Clearly the Supreme Court does not think that the protections afforded by the Speech and Debate clause present "political questions". And since the Political Question Doctrine is a creature of the Supreme Court, I would suggest that the Court's decision on this issue is pretty authoritative.
You under-answered my question. Whether or not the district court got the question wrong doesn't affect whether the question lies in the judicial versus executive domain. The executive isn't expected to get it right. If I were the executive, I'd be thrilled to get a warrant to search congress' offices.
Why does any blame fall on the executive here?
Bears on this matter not at all.
Yours, TDP, ml, msl, &pfpp
You may not read this, but personally, I'm not really interested in "blaming" anyone. Rather, I'm just interested in what the law actually requires.
That said, officers of the Executive Branch swear an oath to support and defend the Constitution, and to bear true faith and allegiance to the same (see 5 USC 3331). So I wouldn't quite agree with you that such officers aren't expected to respect constitutional limitations on their activities, although in most cases it is true that acting pursuant to a warrant or court order will shield them from personal liability.