pageok
pageok
pageok
Exactly What's the Constitutional Argument Against the Search of Rep. Jefferson's Office?

[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.

Dave Hardy (mail) (www):
Congress is above the law, it says so in Article I ???

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.
5.24.2006 9:08pm
Ex-Fed (mail) (www):
Penumbras.
5.24.2006 9:09pm
Beerslurpy (mail) (www):
Hastert seems to be drawing the excessively fine line that "because the papers under subpoena werent being destroyed" there was no reason for them to execute a search. Which seems illogical IMO. If they could convince a judge to give them a search warrant, isnt that reason enough? Surely the FBI and the judge both were aware that the circumstances surrounding the warrant would be heavily scrutinzed after the fact.

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.
5.24.2006 9:35pm
Medis:
I've said a lot on this subject in another thread, so I won't belabor my arguments too long here. But on the specific subject of bribery prosecutions, the Supreme Court offered a pretty nuanced opinion in United States v. Brewster, 408 US 501 (1972). The Court held, "It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." But the Court nonetheless held that the Speech and Debate clause was not a complete bar to bribery prosecutions, because the government could prosecute bribery charges simply by showing that a member of Congress promised to perform an official act in exchange for money, without further inquiring into whether the member of Congress fulfilled that promise through some legislative act.

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.
5.24.2006 9:38pm
Will Wilkinson (mail) (www):
My Cato colleague, constitutional scholar Mark Moller, has an excellent analysis of the legal issues involved in the Jefferson case at the Cato@Liberty blog.
5.24.2006 10:04pm
Beerslurpy (mail) (www):
Their arguments might make sense if they were arguing either:

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?
5.24.2006 10:15pm
Medis:
For what it is worth, I agree with Moller that many of the papers in Jefferson's office likely were not protected by the Speech and Debate clause. As we discussed in the other thread, however, it appears that the government agents seized all sorts of documents, including ones which might be protected. Their plan, apparently, is to have a "Filter Team" which is isolated from the prosecutor determine if any given document might be protected by the Clause, and they will then go to the District Court for a final determination.

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.
5.24.2006 10:16pm
Beerslurpy (mail) (www):
So congressmen can hide evidence of wrongdoing in their official papers and they are beyond the reach of search warrants? Isnt this like Mohawk arguing that because its crimes were a part of its normal business activity that it wasnt operating a criminal enterprise?

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.
5.24.2006 10:21pm
Fub:
EV asks:
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?

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:
"When I raise my right hand and swear to uphold the Constitution of the United States, I mean it," Boehner said, referring to the oath members take at the beginning of each Congress. "[Justice Department employees] take the same oath, so somebody better start reading the Constitution down there."

Both seem to have forgotten the sentence that precedes the speech and debate clause. As the court in Brewster reminds us:
We recognize that the privilege against arrest is not identical with the Speech or Debate privilege, but it is closely related in purpose and origin. It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i. e., all criminal acts.

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.
5.24.2006 10:55pm
Medis:
Beerslurpy,

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.
5.24.2006 10:58pm
RufusLeeKing (mail):

"No member of Congress is above the law," House Minority Whip Steny Hoyer (D-Md.) told reporters yesterday. "I am concerned about the unprecedented exercising of authority over a separate branch of government and the execution of a search warrant without any communication with the leadership of this House."


Not above the law. Just entitled to clean up a bit before any law enforcement searches authorized by the other two branches.
5.24.2006 11:03pm
M. Lederman (mail):
As the Moller post explains, the search of Jefferson's office *might* have raised serious constututional questions, depending on what was seized, in the *absence* of any statutory authorization. Fortunately, we don't need to worry about such questions, because the September 18, 2001 Authorization for the Use of Military Force . . .
5.24.2006 11:05pm
Reg (mail):
Ugh, Idiot! Its like, a violation of due process. Gosh.
5.24.2006 11:06pm
indymike (mail):
To me, regardless of whether there is a constitutional violation or not, this seems like a great area for the court to sit back, throw up their hands, and yell "Political Question!" Hastert or other members of the House have talked about going to court to get the docs back. To me, it seems like Congress has plenty of remedies other than that. They can formally demand the documents from the appropriate office (Pres, AG, head of FBI, etc). If the officer or officers refuse to deliver the required information, the House may vote to impeach that officer and the Senate may try and convict him.

Perhaps this is an unrealistic option, but why should the courts have to get involved when Congress can solve the problem itself?
5.24.2006 11:17pm
Barry Dauphin (mail) (www):
I wonder if Hastert ever heard of Abscam. In more ways than one, that seemed like a dicier situation, since it involved an FBI sting operation to nab members of Congress. As for the papers issue, would Hastert claim that any member of Congress should be able to get away with wrapping cocaine in Committee Reports? Based on fruit of the poisonous tree theory?
5.25.2006 12:03am
Kevin Murphy:
Hastert seems to be drawing the excessively fine line that "because the papers under subpoena werent being destroyed" there was no reason for them to execute a search. Which seems illogical IMO.

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.
5.25.2006 12:17am
Frank Drackmann (mail):
Hasterts probably afraid his stash of kiddy gay porn would be discovered if they went rummaging around on his personal computer. Ever notice he looks like that creepy mortgage officer on the TV commercial? Congressman Jefferson should have watched the Sopranos, everyone knows you don't hide unlaundered money in your freezer, what an amateur.
5.25.2006 12:35am
The Anti-Medis (mail):
[M]y 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.

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.
5.25.2006 1:02am
The Anti-Medis (mail):
Fortunately, we don't need to worry about such questions, because the September 18, 2001 Authorization for the Use of Military Force . . .

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.
5.25.2006 1:06am
The Anti-Medis (mail):
I will note that this Legislature v. Executive clash certainly puts a Democratic scandal on the front page.
5.25.2006 1:10am
Angus:
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.

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.
5.25.2006 1:14am
The Anti-Medis (mail):
Assuming that "deliberations" refers to documents or e-documents,"Internal memos and deliberations" that contain substantiation of criminal conduct are not protected by the Speech and Debate Clause....
5.25.2006 1:17am
Lev:

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.


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.
5.25.2006 1:20am
Bruce Hayden (mail) (www):
It is hard to believe that Hastert would actually litigate this. I have no doubt that anything that was not incriminating against Jefferson would be returned. That leaves the incriminating stuff. And Congress would actually ask the courts to return stuff that incriminates a member, solely on the basis of this privilege?

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.
5.25.2006 1:28am
The Anti-Medis (mail):
I have no doubt that anything that was not incriminating against Jefferson would be returned. That leaves the incriminating stuff.

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.
5.25.2006 1:35am
pallen:
I think you need to consider a structural argument:
"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."
5.25.2006 2:58am
yebby61 (mail):
A hypothetical question.

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.
5.25.2006 3:09am
Dave Hardy (mail) (www):
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.

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....
5.25.2006 3:10am
Kevin Murphy:
Well, with a stretch, one could say that Article I, Section 5, Clause 1&2 are the SOLE remedies for disciplining members of Congress for actions relating to their office. That felony stuff in Section 6 doesn't include felonies that directly pertain to their duties. Like bribery.

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....
5.25.2006 4:08am
randal (mail):
This could go either way depending on how much you like the executive versus congress. I like congress more and think legislators should be meaningfully shielded from the executive, so I like the idea that their offices cannot be plundered. The Constitution seems to agree, in spirit.

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?
5.25.2006 4:09am
Medis:
Anti-Medis,

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.
5.25.2006 5:42am
Angus:
Eugene,
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.
5.25.2006 7:20am
Medis:
By the way, Charles Lane has an interesting article on this subject in the Washington Post. The upshot:

"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.
5.25.2006 7:28am
Medis:
Angus,

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.
5.25.2006 7:37am
PersonFromPorlock:
It seems to me that the offense is not against any particular congressman's rights or privileges but against Congress's status as an independent institution.

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.
5.25.2006 9:55am
Closet Libertarian (www):
Seems that congress gave implicit permission to the FBI to investigate bribery by making it illegal. However, by this reasoning, they could make bribery legal and avoid the FBI. Also, couldn't they pass a law limiting warrants of Congressional buildings.
5.25.2006 10:42am
A. Nonymous (mail):
I think this is being read all the wrong way and is more historical and constituional.

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.
5.25.2006 10:44am
alandry (mail):
I think it's a little unlikely that the district court did not consider the speech and debate clause in issuing the warrant. It is discussed in the affidavit supporting the issuance,which it appears the court read inasmuch as the Judge's signature appears on the last page of that affidavit, in the same capacity as if he were a notary
5.25.2006 10:53am
Yankee_Mark:
I have two thoughts/theories on this matter which are somewhat related.

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.
5.25.2006 11:14am
A.S.:
I posted this on the other thread, but I'll post it here too. Question for Medis:

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.
5.25.2006 11:16am
alandry (mail):
one thing I do find interesting: the warrant bears the judge's handwritten addition ordering the Capitol Police to provide access to the premises immediately.Now, the precautions that seem to be urged by the leadership would all involve some additional time to be taken;the presumption appears to be that if Mrs. Pelosi had been notified, that Jefferson nonetheless would not have been tipped off (no reflection on Mrs Pelosi personally, but that may not have inspired much confidence) so that he could bury the evidence. Yet the subpoena is 8 mos old and surely Jefferson could have burned everything by now.Plus we are told House counsel has the info but refuses to turn it over (what's up with that anyway?)Why the haste? The affidavit implies an inside source and perhaps that person alerted them to Jefferson's plans.So- is there grounds for something like a "hot pursuit" exception to the speech and debate clause?
5.25.2006 11:32am
Bruce Hayden (mail) (www):
I think PersonFromPorlock is right, that it very much is the independence of Congress that is the driving force behind House leadership looking like fools here. As I noted before, this is lose-lose for them. They are sacrificing some of the scarce public approval to make this point. So why do it? Jefferson has a decent chance of being convicted regardless of what was found in his Congressional offices, based on the video tapes, etc. And the answer, is, as indicated, it is the independence of Congress that is at stake here, at least in their minds.

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.
5.25.2006 11:43am
Medis:
Closet Libertarian,

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.
5.25.2006 11:54am
Medis:
Bruce,

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.
5.25.2006 12:01pm
alandry (mail):
Medis- The affidavit and warrant can be found at www.nola.com then click on "Court documents'. There are quite a few redactions and unfortunately, Exhibit B, which I think lists the items to be seized, is fully redacted (although the items sought are discussed in general terms) Be warned- it's about 95 pages long, but the bulk of that is the history of the investigation.BTW, it also starts a discussion of 7 other "deals" in which my congressman was allegedly involved, and then again redacts all of that. I appreciate your attention and diligence to the constitutional questions and your points are worthy. I admit an interest- many of us down here have long been suspicious,if not convinced ,about the actions of Dollar Bill Jefferson (whose brother in law, a state judge, was convicted of bribery last year and -coincidentally- was videotaped taking the money in his chambers). The fact that he is now a figure for the defense of a constitutional protection of the Congress is another sign of the Apocalypse.
5.25.2006 12:32pm
A. Nonymous (mail):
A point of clarification as to the British Parliamentary history of the security of the House (of Commons or in our case of Representatives). I think there's two issues 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.
5.25.2006 12:49pm
Medis:
alandry,

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.
5.25.2006 12:50pm
Medis:
A. Nonymous,

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.
5.25.2006 1:08pm
NickM (mail) (www):
Duke Cunningham wrote up a "bribe menu". What if Bill Jefferson did the same thing, but put it on the margin of a legislative document? Does that have protected status?

Nick
5.25.2006 1:41pm
Christopher Cooke:
What I find particularly ironic is that now, the tables are turned on sweeping assertions of institutional privileges: instead of the President claiming broad "executive" privilege to shield his deliberations from public scrutiny (which Bush has done consistently), now we have Congress claiming a sweeping privilege. At least Congress' claim of privilege has textual support in the US Constitution.

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.
5.25.2006 2:31pm
Medis:
NickM,

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.
5.25.2006 2:34pm
Alan Meese (mail):
According to CNN, DOJ went to a judge other than the one presiding over the Grand Jury to obtain the warrant.
5.25.2006 2:46pm
srp (mail):
Congress could have easily passed a law that prohibited FBI searches of this kind. It did not. Probably this was no careless omission but rather a reflection of political reality--such a law would be immensely unpopular with the people. Now the Congress wants the courts to do the dirty work by building a cantilever from the Speech and Debate clause over the chasm of logic to create an unpopular privilege on the other side. This is a political question and the Supremes should refuse to hear it. Let Congress do its job and legislate to protect itself. Then they won't have any pesky warrants to worry about and can "debate" all they want.
5.25.2006 4:46pm
California redistricting junkie:
One key issue is missing from this debate: Congress has its own law enforcement arm, and the judge could just as easily instructed it to seize and turn over the documents.

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).
5.25.2006 5:31pm
Tal Benschar (mail):

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.


One must admit that the comic value of such antics is priceless.
5.25.2006 8:39pm
Medis:
srp,

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.
5.26.2006 1:19am
randal (mail):
Medis -

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?
5.26.2006 7:51am
TDPerkins (mail):
Lederman wrote:


"Fortunately, we don't need to worry about such questions, because the September 18, 2001 Authorization for the Use of Military Force . . ."



Bears on this matter not at all.

Yours, TDP, ml, msl, &pfpp
5.26.2006 11:03am
Medis:
randal,

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.
5.27.2006 8:20pm