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The Constitutional Argument Against the Search of the Congressman's Office:

Commenters on my earlier post that asked about this have made some very interesting points; I urge people who are interested in the issue to read them. Here's the best argument I could see, after having read that discussion (especially the comments by Medis), for Hastert's position:

1. The Speech and Debate Clause covers not just public documents that are part of the legislative process, but nonpublic ones as well, such as confidential bill drafts, memos about legislation from the staffer to the Congressman (here I use the term to mean both Senator and Representative), memos from one Congressman to another, and the like. I think that's likely right, under the Court's precedents.

2. The Speech and Debate Clause not only bars the other branches from punishing Congressmen based on their statements in the legislative process, but also creates a sort of evidentiary privilege -- like the lawyer-client privilege, the executive privilege, and so on -- that protects confidential documents that are part of the legislative process from being uncovered. That seems plausible, though not certain; but in any event, it seems that the Department of Justice agrees with this.

3. To enforce this privilege, any search must keep the Executive Branch from learning the contents of the documents. Before the documents are turned over to the prosecutors who are working on this case, the privileged documents must be screened out. This is similar, I believe, to what's done with searches of lawyers' offices, where someone who accompanies the searchers screens out the documents that appear to be covered by lawyer-client privilege. Again, the DoJ seems to agree with this; they seem to have provided screeners who are supposed to be independent of the prosecutors..

4. Now, the main argument against this particular search: Any such screener should have been a Legislative Branch official, not an Executive Branch official or someone controlled by the Executive Branch. That is not the rule for ordinary searches of lawyers' offices; as I understand it, the screener there is chosen by the prosecutors, though often not a prosecutor's employee himself. But perhaps it should be the rule for the search of a Congressman's (or a federal judge's) office, since there is a possible set of relatively trustworthy officials who can protect the interests of their Branch, but who will not be controlled by the particular alleged wrongdoer whose premises are being searched.

This does strike me as a plausible argument -- but it is an argument of the "the search would have been just fine, but only with this extra procedure that we wanted them to implement" sort, and not of the "the search is unconstitutional, period" sort.

In any case, that's my tentative thinking; I'd love to hear more on this.

Related Posts (on one page):

  1. FBI Search of Rep. Jefferson's Congressional Office Upheld:
  2. The Constitutional Argument Against the Search of the Congressman's Office:
Paul McKaskle (mail):
I haven't checked on the point for a number of years, but in California, at one time at least, if a lawyer's office is to be searched, it is done by someone (a lawyer) appointed by the State Bar who screens out materials protected by the attorney-client privilege. At the time a prosecutor had no say as to who the State Bar appointed. Whether this is still the case, I don't know.
5.25.2006 2:49pm
Thief (mail) (www):
Perhaps a representative from the Sergeant-at-Arms office would be acceptable in the case of a member of Congress. (They help out in investigating Congress, cf. the "Memogate" scandal.) As for the Judiciary, I suppose the U.S. Marshals would be one possibility.

Or we could just bring back the "independant counsel" statute and have it apply to all three branches. ;)
5.25.2006 2:54pm
OrinKerr:
Helpful post, Eugene. I would also point out 18 U.S.C. 3105, which Congress passed to govern who can execute federal search warrants:

"A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution."
5.25.2006 3:01pm
Charles Chapman (mail) (www):
I'm not familiar with this area of the law, but why couldn't / shouldn't the screener be an agent of the judicial branch appointed by the Court? Perhaps a Magistrate Judge. Analogous to an in camera inspection?

Our would Hastert object just as strongly to judicial supervision? But that wouldn't make sense. In the end, the courts are going to resolve this issue anyway. Why not have them resolve the issue at the start (or at least presumptively resolve the issue at the start; I'm sure any decision by a judicial screener would be subject to review), rather than at the end?
5.25.2006 3:02pm
Medis:
First, thanks for the nod. And I will further pass on the compliment to the poster Angus, who originally brought my attention to the DOJ Criminal Resources Manual and who has been an active and illuminating participant in these discussions, as well as to all the posters who have taken the time to address my views critically. In general, I think we commentators often collectively get to pretty sophisticated and well-informed positions on these issues thanks to this give-and-take process, even if we do not always end up agreeing.

Anyway, Professor Volokh's post definitely accords with my understanding of the plausible arguments, and their likely limits. Of course, I am a procedure-oriented sort of guy, but I also think that the way in which the Supreme Court has treated the Speech and Debate clause in prior circumstances suggests that they will try to strike such a balance (namely, between the historical and structural concerns that motivated the Framers to include the Speech and Debate clause and the countervailing concern with members of Congress using the Clause as a bar to any sort of prosecution, even those unrelated to the legislative process).

Indeed, I can almost see the ROUT already ... (see Orin Kerr's blog).
5.25.2006 3:06pm
Medis:
Charles,

The Supreme Court cases have made it clear that the Speech and Debate clause is not just about protecting Congress from the Executive branch, but also about protecting Congress from the Executive and Judicial branches acting in concert. So, I don't think it would be an adequate solution to place the screening process in the hands of the judiciary.

Of course, as you point out, the actual construction of the Speech and Debate clause is entrusted to the judiciary, and ultimately to the Supreme Court. But it is not unprecedented for the Supreme Court to rule that the Constitution prevents the courts from performing certain tasks.
5.25.2006 3:13pm
Robert West (mail) (www):
Charles -- arguably, the private legislative documents of the legislature should be screened from judicial examination just as they are from executive examination. The same reasoning applies.
5.25.2006 3:17pm
A.S.:
Sounds right to me. The one additional point I'd make is that I find it difficult to believe this issue has never occurred anywhere before. I understand there are similar "Speech and Debate Clauses" under some state constitutions. Yet, there are no cases about this at all - under either the federal or state constitutions? Has there never been a search of a legislator before in the entire history of the country? Or is it that the argument is so far fetched that nobody ever made it before.
5.25.2006 3:36pm
PatHMV (mail) (www):
What rule is applied to search warrants for judicial chambers? I recall a federal case, I think in the 5th circuit, of a judge who was arrested for taking a bribe; upon a search, the payoff money (tracked or marked) was found in a cabinet in his official judicial chambers. If the Executive Branch can search the Judicial Branch upon a proper search warrant, surely it can search the Legislative Branch. All of these privilege arguments for each branch are essentially implied by the language and structure of the Constitution rather than being stated and guaranteed explicitly... so I think the interpretation of each of them should be relatively similar. Just as the President' executive privilege does not extend to bar criminal investigations (as we know from Nixon), there's no reason to give a more encompassing privilege, or greater structural protections, to Congress.
5.25.2006 3:38pm
Medis:
A.S.,

I didn't think about possible state cases until you mentioned it. But I wouldn't be too surprised if there wasn't anything at all--if this is an unprecedented search at the federal level, it would not be too surprising if it was also unprecedented in the relevant states.
5.25.2006 3:41pm
John (mail):
Is the fact that the speech and debate clause doesn't seem to give protection in cases of felony of any relevance here?
5.25.2006 4:02pm
Toby:
I recall (from years ago, dimly) some broohahaa in North Carolina which has a 19th century law preventing sheriffs from "interfering" with legislators as they travel to and from their districts. It seems that this las was cited to get a state representative out of some very high velocity speeding tickets.

If my memory is correct, the law was put in place to prevent partisan arrests of legislators travelling through unfriendly counties. It is not to hard to come up with a reconstruction-era scenario...
5.25.2006 4:04pm
JoshL (mail):
Yeah, I've been wondering the same thing as John this whole time. We're talking about a felony case here, no? Can someone put this into perspective?
5.25.2006 4:09pm
Dan Larsen:
I would say that the separation of powers argument on the FBI raid isn't about who the raid targeted, or the documents seized (in short, it's not about the Speech and Debate clause) it's about where the raid was conducted. This isn't a textual argument about a particular clause, but about the inherent structure of our government.

To begin by analogy, I think it's the same logic under which the Congress and Supreme Court enjoy inherent powers of contempt, independent of the statues. If someone is interfering with the House's exercise of its constitutional functions, (and the House elects not to use its statutory contempt power for some reason), they still have an inherent contempt power with which to punish him--the only restrictions being that the accused must be accorded a trial at the bar of the House, and must be released when Congress adjourns at the end of a Session (see Hinds Precedents of the U.S. House of Representatives, Volume II, Chapter 51; available here). Even though it is not written into the Constitution, Congress and the Courts must have this inherent power, because they must be able to protect their capacity to carry out their constitutional functions in manner that does not depend on the executive for enforcement.

It is under that logic that executive branch agents should never breach the Capitol building or the Supreme Court building. Those are the seats of the other branches of government, where Congress and the Supreme Court carry out their constitutional functions. For the executive to have the power to force entry into those buildings seriously risks compromising the capacity of the Congress and the Supreme Court to carry out their their constitutional responsibilities. Indeed, consider the case of other countries--it is usually a sign that something is seriously awry when executive agents enter the seat of the legislature without the legislature's consent. Or that of England of old: the impropriety of an agent of the Crown forcing entry into the Houses of Parliament should be self-evident.

The question is whether that principle extends beyond the Capitol itself to House and Senate office buildings. I think that it does. The House and Senate office buildings are legally under the jurisdiction of the Capitol police and under that of their respective Sergeants-at-Arms. Given the workload of Congress these days, they are necessary for Congress to carry out its Constitutional responsibilities.

Exactly what the proper course of action would have been, I can't quite say with certainty. There's nothing in the House precedents that speaks to search warrants for House Office buildings. Since it is, however, property directly answerable to the House, I think that an order could have been issued by the House for the House Sergeant-at-Arms to obtain the necessary records.

Regardless of the exact legal avenue taken, I think that the principle of separation of powers would require at a minimum that any warrant for Congressional office buildings be executed by the Capitol Police or by the buildings' respective Sergeant-at-Arms.
5.25.2006 4:09pm
Dave Hardy (mail) (www):
The one additional point I'd make is that I find it difficult to believe this issue has never occurred anywhere before. I understand there are similar "Speech and Debate Clauses" under some state constitutions.

Not surprising, since it's patterned after the British Declaration of Rights of 1688/89.
5.25.2006 4:12pm
Dave Hardy (mail) (www):
Is the fact that the speech and debate clause doesn't seem to give protection in cases of felony of any relevance here?

The restriction on arrest has exceptions for felonies, but the speech and debate clause does not. Its main purpose was to keep the exec. from doing as British kings (up to the English CIvil War) occasionally did -- bust their parliamentary critics for seditious libel or treason, based on floor speeches and motions. The last precipitating event in the Eng. Civil War was Charles I's going onto the floor with his guards to try to arrest four parliamentary leaders for their actions.

Interesting comparisons with "Executive Privilege" (except that it has no express constitutional mention) which (1) Congress frequently probes, (2) the Executive invariably defends as essential to getting frank advice and decisionmaking, and (3) has some recognized limits -- tends to be seen as covering policy advice, drafts of positions, but not as covering statements of fact.
5.25.2006 4:17pm
Medis:
John and JoshL,

To echo Dave Hardy, after reading many cases now, I'm quite confident that the felony exception does not apply to the Speech and Debate clause.
5.25.2006 4:38pm
MDJD2B (mail):
It is under that logic that executive branch agents should never breach the Capitol building or the Supreme Court building...For the executive to have the power to force entry into those buildings seriously risks compromising the capacity of the Congress and the Supreme Court to carry out their their constitutional responsibilities.

Dan Larsen,

I'd like to explore your doctrine. Does it also protect electronic communications bade from the Capitol and from Congressional offices? Does it also apply to offices in the districs of senators and representatives? Are members of congress immune when Congress is not in session? And does this doctrine create a sanctuary wherein corrupt congresspeople can commit felonies to their hearts' content unless their colleagues intervene? And would such intervention allow executive or judiciary officials conduct searches with Cngressional permission, or must Congress conduct such investigations itself?
5.25.2006 4:45pm
Medis:
Incidentally, President Bush has just ordered the documents sealed and placed in the custody of the Solicitor General (?) for 45 days. I gather this is supposed to be a cooling-off period.

I'll say one thing in favor of the Bush Administration--they have made this a very interesting time for those interested in the Constitution.
5.25.2006 4:48pm
alandry (mail):
Is there any significance to the fact that the District Judge issued his order directed to the Capitol Police? B/c if I'm following this argument correctly-may be doubtful- the federal judiciary would have no power to order the Capitol Police to do anything, because of the speech and debate clause.Any order to them would have to come from the legislators.
5.25.2006 4:56pm
Dan Larsen:
I'd like to explore your doctrine. Does it also protect electronic communications bade from the Capitol and from Congressional offices?

I would say yes.

Does it also apply to offices in the districs [sic] of senators and representatives?

I would say no. Those offices are not under the jurisdiction of the chambers' respective Sergeant-at-Arms, nor can they be said to be an extension of the seat of legislative power in the same manner the congressional office buildings are.

Are members of congress immune when Congress is not in session?

This question is a bit odd...my argument is not about "members of Congress", its about buildings. To the extent that the buildings would be protected when Congress is not in session is debatable. Since Congress is not in session, they are not technically exercising their Constitutional functions, so they wouldn't need to be protected in that direct sense. Similarly, Congress must free people it is holding under its inherent contempt power when it is not in session. Nevertheless, I would still find the imagery of executive agents forcing entry into the Capitol building very disturbing, even if Congress is not in session.

And does this doctrine create a sanctuary wherein corrupt congresspeople can commit felonies to their hearts' content unless their colleagues intervene?

I wouldn't think so. Undercover investigations into the office buildings would still be permitted. Use of grand juries to obtain the documents would still be permitted.

And would such intervention allow executive or judiciary officials conduct searches with Cngressional permission, or must Congress conduct such investigations itself?

I should think that the actual executing of a warrant should come with congressional permission and be executed by the Capitol police or by the appropriate Sergeant-at-Arms. The "investigation" itself, however, would not have to be conducted by Congress.
5.25.2006 5:06pm
srp (mail):
As I've mentioned before, the Congress is trying to hide a politically unpopular position behind a judicial fig leaf. They could have legislated at any time to prevent the FBI or other executive branch personnel from searching their offices. They did not do so because it looks and smells bad. Remember that the FBI is only coming in pursuant to a law against bribery that the Congress itself passed; there is nothing that would have stopped the legislature from prohibiting searches of this kind.

The federal courts should treat this as a political question. The separation of powers requires each branch to use its prerogatives vigorously to check and balance the others. If one of them wimps out for political reasons, that's bad for everybody. The biggest problem with Congress today is a refusal to take any collective responsibility for anything. The Supremes should not act like a co-dependent family member.
5.25.2006 5:13pm
Mark Buehner (mail):
Assume for a moment that the Speech and Debate Clause argument is valid: does it apply on to documents or would any search warrant executed by the executive be illegal? Could a legislator hide a murder weapon in his desk for instance?
5.25.2006 5:27pm
Brett Bellmore (mail):

To echo Dave Hardy, after reading many cases now, I'm quite confident that the felony exception does not apply to the Speech and Debate clause.


That's a rather remarkable statement, given that these words, "except Treason, Felony, and Breach of the Peace," are PART of the Speech and Debate clause. Couldn't we just redact the "privileged from Arrest" part, instead, if we're going to be throwing away bits and pieces of the clause?
5.25.2006 5:56pm
Ohm (www):
That is not the rule for ordinary searches of lawyers' offices; as I understand it, the screener there is chosen by the prosecutors, though often not a prosecutor's employee himself.

In my (albeit somewhat limited) experience with the search of attorneys at the federal level, the screeners have always been other prosecutors and/or agents who are not part of the case. Indeed, the U.S. Attorney's Manual provides:

Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a "privilege team" should be designated, consisting of agents and lawyers not involved in the underlying investigation. USAM 9-13.420(E).

The reference to "agents and lawyers" presumably means U.S. Government agents and lawyers.

In the most famous example of this from the computer search world (which is the world I know best), the "taint" team in the U.S. v. Triumph Capital Group case consisted of a Supervisory AUSA who wasn't involved in the case. 211 FRD 31, 43 (D. Conn. 2002).
5.25.2006 5:57pm
Bill S (mail):
When the executive branch seeks a warrant against anyone, the check on their behavior comes from the requirement of judicial approval of the warrant. In this case, the judge who signed the warrant had the responsibility for imposing any limitations to the warrant.

Bottom Line:
1. They had probable cause;
2. They obtained a warrant from a judge;
3. They properly executed the warrant.
5.25.2006 5:58pm
DJ (mail):
I don't understand the brouhaha in the blogosphere over Congress's action shere. Isn't it no suprise that Congress would assert its institutional independence in the face of an unorthodox and, as far as I can tell, unprecedented executive action like this? And don't we want Congress to take its independence seriously? Maybe the leadership's constitutional arguments don't win the day in the end, but that's hardly reason to denounce congressional Republicans for raising them.

Why aren't conservatives denouncing Justice Scalia for warning Congress not to get involved in the Court's reliance on foreign authority? Because it was plain there that Scalia was defending the Court's independence--and certainly not defending the citation of foreign cases. I think too many people are confusing the GOP leadership's simple defense of its (purported) institutional perogatives as being somehow pro-corruption. And that's just plain dumb.
5.25.2006 6:08pm
alandry (mail):
I also do not understand how the president can order documents sealed in a judicial proceeding. Doesn't that order have to come from a judge? I am way out of the field of civil litigation here, but I still don't see how he has the authority to issue the order.
5.25.2006 6:14pm
A.S.:
I also do not understand how the president can order documents sealed in a judicial proceeding.

It's not a judicial proceeding, it's an investigation. The judge has nothing to with it after the warrant is issued.
5.25.2006 6:44pm
Dan Larsen:
The documents are not yet in a judicial proceeding; they're just part of a prosecutorial investigation at the moment. As head of the federal government, Bush ultimately has supervision over federal investigations. That's how he's ordered them sealed.

Also, I think I've offered above a novel and reasonable defense of Congress' position; so far I've only gotten one response. I just thought I'd call attention to it, since people seem to be scrolling past it.
5.25.2006 6:48pm
alandry (mail):
I am sorry if I misunderstood, but it was reported yesterday that Jefferson had "filed a motion" to have the evidence seized returned. In that event, I would have assumed that the judge before whom the motion lies would have to decide what to do: return them, seal them, hold them for in camera inspection.
5.25.2006 7:02pm
alandry (mail):
ps to Dan Larsen- as far as your post is concerned, the last point is what I was obliquely mentioning earlier. I don't mean to get locked in minutiae, but you say that a warrant should be executed by the capitol police (or sergeant at arms). Here the judge ordered the capitol police to "open" the premises immediately.But I gather from the argument that he had no authority to issue an order to that force-whether to open the door or execute the warrant-unless, as you say, the Congress approves it. How does that work?Who in the Congress approves it? I know nothing about the jurisdiction of the Capitol police but it sounds like no federal judge can issue an order to them without specific congressional approval that takes some unknown form.
5.25.2006 7:11pm
Dan Larsen:
The evidence is still in the custody of the government. It will stay in the custody of the government unless the court decides to the contrary. Bush's "sealing" only applies to the prosecutors involved in the case; he has no authority to seal them against a court order.
5.25.2006 7:12pm
percuriam:
Even assuming it violated the various interested posted by many of you, what would be the remedy? Exclusion of such evidence against Jefferson?

I foresee legislative action limiting searches on the Hill, with the protections people have suggested here.

Dan Larson does raise an interesting point re the separation of powers doctrine protecting the location of the search. I do have a question, how do we draw the line? Shouldn't such protection extend to any place where th execution of "constutional functions" takes place? Doesn't that include Jefferson's or other congressional members' home while they're in session?
5.25.2006 7:13pm
Chris Bell (mail):
I'm going to throw a fit if Congress passes some law exempting their offices from search. There's nothing I find more hypocritical than requiring different standards....

I know that Congress needs to be independant, but if law enforcement can search your home, office, newspaper's office, and doctor's office (with probable cause) then Congress is fair game.

Requiring that our legisators have to live by the same rules as we do helps to keep those rules reasonable.
5.25.2006 7:24pm
The Drill SGT (mail):

...
Bottom Line:
1. They had probable cause;
2. They obtained a warrant from a judge;
3. They properly executed the warrant.

As I understand things, I would add to precursors:

a. There was an open subpoena for the documents in question for 6-8 months that the subject (Jefferson) refused to honor
b. The Congress, then in session, knew of the open subpoena and failed to take any action to encourage its enforcement.
5.25.2006 7:25pm
The Drill SGT (mail):
That should have been addressed to Bill S

and

add TWO precursors:
5.25.2006 7:26pm
Dan Larsen:
As far as I know, no judge has ever before ordered the Capitol Police to do anything. I would argue that the order was probably unlawful, that the boundaries of judicial authority were overstepped. To me, it seems like a judge ordering the Capitol Police to do anything is like Congress or the President ordering the Supreme Court's bailiff to do something, or the President ordering a congressional Sergeant-at-Arms to do something. It just isn't an acceptable use of power. Though the Capitol Police are a quasi-independent body (the Capitol Police are governed by a three-person board consisting of the Architect of the Capitol--appointed by the President, confirmed by the Senate--and the Sergeants-at-Arms of the chambers of Congress), the building was also under the jurisdiction of the House Sergeant-at-Arms, so the order was legally directed at the House Sergeant-at-Arms also.

Personally, I think the House Sergeant-at-Arms would have been within his rights to have defied the order (at least pending the instructions of the House), and I think that the House would have been within its rights to have invoked its inherent contempt power to issue warrants instructing the Sergeant-at-Arms to arrest the officers conducting the search of the office.

I'm not quite sure exactly what the legal procedure should have been--there are no House precedents for this. Certainly a safe course of action would have been to have had a House body--the ethics or judiciary committee, or the House itself--subpoena the documents, (which order would have been properly enforced by the Sergeant-at-Arms) at which point the House could have decided to turn them over.
5.25.2006 7:40pm
PD Shaw (mail):
Regarding the unenforced subpoena, I understand that it may indicate good faith efforts to do this another way.

But noncompliance with a subpoena is an issue to be raised by the issuing tribunal. By seeking information in another route, it suggests that law enforcement is doing an end run around that process and avoding the court's perogative to deal with whatever legal issues Jefferson is raising. Does anyone have any more info on the unenforced subpoena?
5.25.2006 7:48pm
Dan Larsen:
Dan Larson [sic] does raise an interesting point re the separation of powers doctrine protecting the location of the search. I do have a question, how do we draw the line? Shouldn't such protection extend to any place where th execution of "constutional functions" takes place? Doesn't that include Jefferson's or other congressional members' home while they're in session?

I would say that the line should be drawn at the Capitol complex. The complex is under the jurisdiction of the Capitol Police and the appropriate Sergeant-at-Arms; Jefferson's home is not. The office buildings are a logical (and geographical) extension of the seat of legislative power; Jefferson's home is not. In today's society, Congress is not capable of carrying out its functions without the office buildings; Jefferson's home, not quite so required.

Even if you think the line should be drawn more restrictively, we can at least agree that it would be a serious violation of separation of powers for executive agents to enter the Capitol itself?
5.25.2006 7:52pm
Bob Smith (mail):
One serious problem I have with Congress-appointed screeners is that any legislative impropriety (like bribery) is very likely to implicate other members of Congress. They have a conflict of interest, and are likely to appoint people who will screen out evidence of their own complicity in the scandal du jour.
5.25.2006 7:58pm
JLO (mail):
PDShaw:
See the end of this WaPo article for more on some of the legal precursors to the search.

In short:
-Jefferson and his attorneys claimed the fifth and resisted the subpoena.
-Prosecutors filed a sealed motion by force Jefferson's chief of staff (keeper of the records) to comply.
-The District judge ruled in favor of the government regarding certain items and for Jefferson on others.
-The judge wrote a footnote in his ruling that the government was free to pursue a search warrant as an alternate means of securing the evidence.
5.25.2006 8:13pm
JLO (mail):
Make that *to* force Jefferson's...
5.25.2006 8:22pm
srp (mail):
There is always a tension between separation of powers and self-dealing. Each branch's independence also leaves open possiblities for them to cover up malfeasance and defend that coverup as an institutional prerogative. I think the primary remedy for such self-dealing should be political rather than juridical--that's why I never liked the independent counsel statute.

If executive searches of Congressional offices really threaten the legislative process, then Congress should hold hearings, legislate against them, and provide some internal mechanism as a substitute. This internal mechanism will be imperfect because of the dangers of collusion within the Congress to cover up one another's crimes, etc., but that's better than setting up some new independent magistrate/panel to carry out and/or approve searches. We will then simply have to maintain vigilance and use the political process to keep the most dangerous branch honest in these cases. Some things cannot be solved through formal legal devices.
5.25.2006 9:16pm
percuriam:
Larsen: Even if you think the line should be drawn more restrictively, we can at least agree that it would be a serious violation of separation of powers for executive agents to enter the Capitol itself?

In my view it would not be a violation of the doctrine at all. I was commenting on the view that the separation of powers doctrine would draw a line at the physical location of the branches. I think a protection similar to an evidentiary privilege would be sufficient (and more effective), as compared to your view, to prevent a chilling effect on the legislative thought process, while maintaining the need for the executive branch to gather evidence of criminal activity.

Also, why wouldn't the detached and neutral judge's finding of probable cause be sufficient to protect against executive branch abuses or encroachment over the line drawn by the separation of powers doctrine? Moreover, the warrant requires a description of the particular items to be seized. In Jefferson's case, the items to be seized should have related only to the alleged "favors" given in exchange for the money. Otherwise, the warrant would be too broad. Aren't these protection enough to allay all fears?
5.25.2006 9:50pm
Dan Larsen:
I really think that it would be a manifestly improper violation of separation of powers for executive agents to actually enter the Capitol building in serving a warrant. I don't quite have as much confidence that the judge will always be sufficiently neutral and detached. It is not difficult to imagine a situation in which an executive-sympathetic (or, in a less stable world, executive-intimidated) judge would sign warrants that probably shouldn't be signed, and then those warrants would be carried out by executive agents who would carry them in a manner that is less deferential and more messy. At what point is the line drawn? Could the FBI serve a warrant on the House floor while the House is in session? Be able to search the rostrum while the House is trying to conduct business? Personally, I think that House Sergeant-at-Arms would be entitled to use whatever force necessary to prevent the entry of executive officers onto the House floor, regardless of what their warrant might say. How much disruption could an aggressive executive that enjoys the support of a sympathetic (or intimidated) judge cause before separation of powers is threatened?

Similarly, if that were applied to the Congressional office buildings--suppose the executive bullied a judge into signing hundreds of separate search warrants in the middle of a Congressional session. At some point wouldn't separation of powers be endangered?

Suppose such a judge were bullied into signing warrants for the Supreme Court. Search warrants for the offices of all nine justices, while the Court was trying to conduct business. Were is the line drawn?

I think that the seats of each of the three branches must be sacrosanct for separation of powers to have meaning. A single district judge should not be all that stands in the way between the President and the power to completely disrupt the functioning of the other two branches of government.
5.25.2006 10:45pm
Medis:
Brett,

Actually, the felony exception is in the Arrest clause, which is not the same thing as the Speech and Debate clause.
5.26.2006 12:59am
Angus:
Thanks, Eugene, for this post. I think it summarizes quite well what Medis, I, and others were trying to argue.
5.26.2006 1:05am
Medis:
Mark,

A murder weapon presumably would not be protected insofar as it was unrelated to a legislative act.

Bill S,

But the Speech and Debate clause is unique to members of Congress. Accordingly, insofar as the Clause applies, the rules are not necessarily the same as they would be in other cases where the Clause does not apply.

percuriam,

Well, one remedy Hastert and Pelosi are requesting is the immediate return of the seized documents, unread.

And on the subject of why judicial participation is not enough: the history of abuses that led the Framers to include the Speech and Debate clause in the Constitution frequently included the judiciary acting in concert with the executive. So, by both its plain terms and its original meaning, the Speech and Debate clause protects against actions by the Executive Branch, the Judicial Branch, and both acting together.

Bob Smith,

I don't think the Constitution is designed to deal with the situation in which a majority of Congress is involved in a criminal conspiracy. In general, the Constitution is not a fail-safe document, and cannot be expected to deal with all hypothetical disasters.
5.26.2006 1:35am
Medis:
Incidentally, Hastert has an Op/Ed appearing in USAToday, and it appears that he is more or less on board with the general view expressed in Professor Volokh's post (that "it is an argument of the 'the search would have been just fine, but only with this extra procedure that we wanted them to implement' sort, and not of the 'the search is unconstitutional, period' sort.").

Hastert writes:

"The issue that has concerned me, as Speaker, since Saturday night is not if the FBI should be able to search a member of Congress' office, but rather how to do it within the boundaries of the Constitution.

...

Democratic Leader Nancy Pelosi and I directed the lawyers for the House to develop reasonable protocols and procedures that will make it possible for the FBI to go into congressional offices to constitutionally-execute a search warrant.

In more than 219 years, the Justice Department has never found it necessary to use a search warrant to obtain documents from a congressional office. These issues have always been resolved without the necessity of a search warrant, and prosecutions have gone forward.

Justice Department officials now insist that this specific case required them, for the first time, to conduct a search. I regret that when they reached this conclusion, they did not work with us to figure out a way to do it consistently with the Constitution. But that is behind us now. I am confident that in the next 45 days, the lawyers will figure out how to do it right."
5.26.2006 1:42am
The Voice of Reason (mail):
So what was this terrible procedure that so offended Hastert and purportedly shredded our founding document?


"[U]nder the extraordinarily deferential search procedure the Justice Department employed in this case out of respect for separation-of-powers, the case agents are TWICE removed from the search. That is, one team of agents, which had nothing to do with the corruption investigation, conducted the court-authorized search. In that phase, Jefferson and Congress had the protection of a federal judge, who insured that the search warrant complied with the Fourth Amendment's "particularity" requirement — meaning agents were limited to seizing only the items described in the warrant, and were not permitted to do a general fishing expedition throughout the office.

Not content with that, DOJ added the protection of a phase two. The non-case agents brought the seized items to another group of agents and prosecutors who had nothing to do with the case. This was a so-called "privilege team." Their function was to review carefully all of the items seized to make certain that only materials relevant to the corruption investigation would be given to the case agents. Everything else — including any sensitive political materials that may inadvertently have been taken but have nothing to do with the corruption case — would be returned to congress so that they could not be used against Jefferson in violation of the speech-and-debate privilege.

Moreover, having been through this sort of thing a few times in my experience, I can also virtually assure you that there is a THIRD layer of protection. Let's say there's some seized item as to which there could be some argument — i.e., something that may be relevant to corruption but may also be protected by the speech-and-debate privilege. In that unlikely situation, you can bet that the privilege team will not give it to the case agents. Rather, they will notify Jefferson's lawyers about it, bring it to a federal judge, and have the judge to decide — after hearing arguments from both sides — whether the case agents should be allowed to see it."
5.26.2006 2:05am
The Anti-Medis (mail):
That sounds like an evidentiary privilege, much like the Speech and Debate cases lay out.
5.26.2006 2:08am
Medis:
TVOR,

But the bottom line is that all the various agents are members of the Executive Branch. So, they may have effectively isolated one part of the Executive Branch--the prosecutor--from other parts of the Executive Branch--the non-case agents seizing the materials and the team reviewing the material--but I don't see how that addresses the separation of powers issue, since this is all being done by one part or another of the Executive Branch.
5.26.2006 2:13am
Medis:
Anti-Medis,

Actually, the cases lay out a number of things arising from the Speech and Debate clause, including also a testimonial privilege and immunity from both prosecution and suit. So, while I agree that the DOJ seemed to treat the Speech and Debate clause as if it ONLY provided an evidentiary privilege, I see no support for that proposition.
5.26.2006 2:18am
Christopher Cooke:
Screening procedures or not, I still think the Congress is right to defend its privileges, and it may not have been appropriate for the DOJ to execute the search without Congress' consent, and it may have been wrong for the judge to suggest (if he did) that a search warrant was an appropriate alternative means. Although, I think the DOJ was not as reckless as it first appeared in media reports. And, I do agree, from what I have read, that Jefferson is probably dead bang guilty on the bribery charge.
5.26.2006 2:21am
Medis:
So, inspired by another poster, I looked up California's procedure for dealing with search warrants for documents held by lawyers, physicians, psychotherapists, and clergymen. It appears in California Penal Code 1524(c)-(f). In a nutshell, it provides for Special Master who accompanies the person executing the warrant. The Special Master is a member of the Bar chosen from a special list of qualified attorneys and should have no relation to the parties.

The Special Master first asks the person holding the documents for the relevant documents. If the Special Master determines that the person has not properly complied with this request, the Special Master conducts the search. If the person raises a privilege claim, the Special Master seals the document and takes it to the court for a hearing.

Interestingly, California Evidence Code 915(a) provides that in general, the court cannot require disclosure of information claimed to be privileged in order to determine if it is privileged. There is an exception, however, for hearings pursuant to Penal Code 1524, if "the court determines that there is no other feasible means to rule on the validity of such claim other than to require disclosure." In that case, the court can require the party asserting the privilege to disclose the information out of the presence of all other persons.

What is the point of this digression? Only that the federal procedures relating to search warrants and attorney-client privilege are not in fact a highwater mark of protection. Again, though, in my view the Speech and Debate clause affords more than such a privilege.
5.26.2006 3:02am
The Anti-Medis (mail):
I don't see how that addresses the separation of powers issue

It certainly addresses whether the Speech and Debate Clause privilege was respected. That is, given the procedures already applied, it was respected, and there is no separation-of-powers issue to address. But I suppose that reasoning isn't persuasive to you if you simply beg the question.
5.26.2006 6:47am
The Anti-Medis (mail):
Actually, the cases lay out a number of things arising from the Speech and Debate clause, including also a testimonial privilege and immunity from both prosecution and suit.

This is untrue. In you actually read the cases, you'll find that Congresspersons can be indicted, sued, and convicted. There is no privilege that protects Congresspersons from submitting to the legal process. The privilege is a part of the legal process, i.e., you can indict me, but not with evidence X; you can convict me, but not with evidence X; you can use incriminating statements I made, but not from evidence X. The cases do not support the propositon that the legislative branch can interfere with federal investigations. That is something you made up, and which makes no sense.
5.26.2006 6:52am
The Voice of Reason (mail):
But the bottom line is that all the various agents are members of the Executive Branch.

Agents, yes. But not "legal actors," which is what's relevant. The bottom line is that there is no taint. The bottom line is that the privilege was respected. The bottom line is that a judge oversees the process. The bottom line is that the legislator, individually, and Congress, collectively, have a chance to intervene legally. The bottom line is that all three branches are involved.
5.26.2006 6:57am
Anonymous Reader:
Medis,

Correct me if I'm wrong, but when you say, "A murder weapon presumably would not be protected insofar as it was unrelated to a legislative act." Do you still say that the FBI has no constitutional standing to physically raid a congressman's office without congressional approval or Capitol Police? Let me take it a step further, let's say that in the course of an FBI investigation, they catch a murder or attempted murder on tape and the suspect flees directly to the Capitol Building. What should be done in that case?

I'd also like to know if there are any statements from the Capitol Police or Sergeant at Arms or anyone from the Legislative branch concerning the raid. Did they know about it in advance? Were they told about it as it happened and were they present during the search? An earlier comment in one of these posts mentioned that the warrant issuing judge purposefully included a statement stating that the Capitol Police let them in to search. To me that implies that an attempt was made previously but they were rebuffed by the Capitol Police, so the FBI went and got a "bulletproof" warrant to search the office. And if that is the case, shouldn't or did the Capitol Police notify anyone about the impending search?

There seems to be something missing. We've heard from the Congressmen but we've still heard nothing about Capitol Police involvment. Not even a, "... we had no idea that they were going to do that..." I think this information is vitally important. Because I think it would fill in a lot of the blanks missing here. We had more statements and commentary from the Capitol Police during the McKinney and Kennedy fiascos than we've had here and to me that seems to be significant.

Anonymous Reader
5.26.2006 7:01am
percuriam:
Some interesting language from Mistretta:


Madison, in writing about the principle of separated powers, said: “No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961).
In applying the principle of separated powers in our jurisprudence, we have sought to give life to Madison's view of the appropriate relationship among the three coequal Branches. Accordingly, we have recognized, as Madison admonished at the founding, that while our Constitution mandates that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others,” Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935), the Framers did not require-and indeed rejected-the notion that the three Branches must be entirely separate and distinct. See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977) (rejecting as archaic complete division of authority among the three Branches); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (affirming Madison's flexible approach to separation of powers). Madison, defending the Constitution against charges that it established insufficiently separate Branches, addressed the point directly. Separation of powers, he wrote, “d [oes] not mean that these [three] *381 departments ought to have no partial agency in, or no controul over the acts of each other,” but rather “that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.” The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original). See Nixon v. Administrator of General Services, 433 U.S., at 442, n. 5, 97 S.Ct. at 2789, n. 5. Madison recognized that our constitutional system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which “would preclude the establishment of a Nation capable of governing itself effectively.” Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). In a passage now commonplace in our cases, Justice Jackson summarized the pragmatic, flexible view of differentiated governmental power to which we are heir:
“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (concurring opinion).
In adopting this flexible understanding of separation of powers, we simply have recognized Madison's teaching that the **660 greatest security against tyranny-the accumulation of excessive authority in a single Branch-lies not in a hermetic division among the Branches, but in a carefully crafted system of checked and balanced power within each Branch. “[T]he greatest security,” wrote Madison, “against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.” The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Accordingly, as we have noted *382 many times, the Framers “built into the tripartite Federal Government ··· a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S., at 122, 96 S.Ct., at 684. See also INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 (1983).


moreover, this portion:


It is this concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence and aroused our vigilance against the “hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power.” Ibid. Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch. For example, just as the Framers recognized the particular danger of the Legislative Branch's accreting to itself judicial or executive power,FN12 so too have we invalidated attempts by Congress to exercise the responsibilities of other Branches or to reassign powers vested by the Constitution in either the Judicial Branch or the Executive Branch. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (Congress may not exercise removal power over officer performing executive functions); INS v. Chadha, supra (Congress may not control execution of laws except through Art. I procedures); Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (Congress may not confer Art. III power on Art. I judge). By the same token, we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (upholding judicial appointment of independent counsel); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (upholding*383 agency's assumption of jurisdiction over state-law counterclaims).



Although I recognize Mistretta was a delegation of powers case, it appears that the proper standard re SOP is whether the execution of a search warrant would "undermine[] the authority or independence" of the Congress. I think it does not (for the executive was executing its own constitutional duty) but certainly this view is up for debate.
5.26.2006 7:24am
Angus:
The bottom line is that all three branches are involved.

If all three branches are involved in something which only one of them may do--that's the very definition of a violation of separaiton of powers.

Welcome on board the anti-search warrant bandwagon.
5.26.2006 8:34am
Bemac (mail):
As recently as 1989, the Congress has affirmed a role for the executive in the appointment of the architect of the Capitol. The architect serves with the two sergeants-at-arms on the Capitol Police Board that oversees and directs the Capitol Police.

Since the architect has direct statutory responsibility for the police, and the president has statutory responsibility for appointing the architect, it seems Congress has allowed for some executive branch role -- however small -- in overseeing the Capitol. If that is constitutional, it seems hard to argue that any exercise of executive branch authority at the Capitol is unconstitutional.
5.26.2006 9:22am
Angus:
Bemac,
The executive role in the appointment of the Architecht of the Capitol is extremely limited and is explicity not a grant of authority to the executive over the legislative branch.

1. The President can only select a candidate from a list drawn up by Congress, and the candidate must then be confirmed by the Senate.

2. Once appointed, the Architect "becomes an official of the Legislative Branch as an officer and agent of Congress."
5.26.2006 10:43am
A.S.:
If all three branches are involved in something which only one of them may do--that's the very definition of a violation of separaiton of powers.


I agree completely with this. It is, of course, the exact same argument as is made in favor of the President's Article II power to conduct warrantless surveillance for foreign intelligence purposes. That is, the President alone may conduct the nation's foreign policy; accordingly, involving Congress and the courts is "the very definition of a violation of separation of powers".
5.26.2006 11:00am
Angus:
A.S.,

Just read Article II, and there is no mention there of "warrantless surveillance for foreign intelligence purposes." Nor do the words "foreign policy" appear. It says the President is CIC of the Army and Navy, can make treaties with the advice and consent of the Senate, and can appoint (with advice and consent) and receive ambassadors to and from other nations. Your interpretation that the President alone may conduct foreign policy is widely accepted, but is based more on precedent and customary understanding rather than a strict textual analysis.

I'm always interested as to why some people want a remarkably broad interpretation of Article II, but a drastically narrow interpreation of Articles I and III.

In any case, the debate over the NSA wiretaps is about whether some of them also amount to warrantless domestic surveillance. No one would really object if the NSA intercepted a call from Iraq to Afghanistan. However, if a call is placed into or out of the United States, the person in the United States can arguably be considered to be under domestic surveillance.
5.26.2006 11:49am
Mark Buehner (mail):
However, if a call is placed into or out of the United States, the person in the United States can arguably be considered to be under domestic surveillance.

Thats, of course, the counter-argument, but the counter-counter-argument would be that the president would certainly have the authority to intercept the communications between a German U-boat and a nazi sabateur hiding in Boston.
5.26.2006 11:59am
Angus:
Thats, of course, the counter-argument, but the counter-counter-argument would be that the president would certainly have the authority to intercept the communications between a German U-boat and a nazi sabateur hiding in Boston.

He does under FISA. Under FISA, he can intercept that communication, act on it to stop the sabotage, and then can request a *retroactive* warrant to cover it. But he still needs a warrant to legally conduct surveillance in the U.S.

What a lot of people object to is the President saying he needs no warrant at all, ever.
5.26.2006 12:09pm
A.S.:
Interesting tack. Of course, the Speech and Debate Clause does not use the words "search" or "seizure", so, by your method of Constitutional interprpetation, there can be no issue with the Saturday Night Raid.

I'm always interested as to why some people want a remarkably broad interpretation of Article II, but a drastically narrow interpreation of Articles I and III.


Likewise, I'm always interested as to why some people want a remarkably broad interpretation of Article I, but a drastically narrow interpretation of Articles II and III.
5.26.2006 12:14pm
Jam (mail):
"foreign intelligence" under Article 2? Can you post the text where that appears. Or are talking about military operations in a war zone?

The amendments modify the Articles, not the other way around.
5.26.2006 12:25pm
Mikeyes (mail):
As a layman who is an interested observer of what is turning out to be an important political and constitutional event, I was wondering how the supporters of the Executive will rebutt the motion filed by Representative Jefferson? (Here is the memorandum which contains a lot of the details of the seizure, courtesy of SCOTUSblog.)

The issue here is not the culpability of "Dollar Bill" Jefferson, who is, after all, from New Orleans - automatic proof of corruption until proven otherwise in some circles. Rather it seems to be the important question of where the boundaries (both constitutional and political) of the separation of branches are. In my reading of the Constitution (everyone should do it at least once) Congress does have a special privilege. This issue seems to be well addressed by Jefferson's lawyers as are the questions of Fourth Amendment and procedural violations.

But the political violation may be more important in the long run and that seems to be driving the presidential order to sequester the evidence. I can only imagine what the sight of Pelosi/Reid/Hassert/Frist United must be like to a president who has supposedly has complete control over the legislature (in theory, of course) as the head of the governing party. The decision to carry out the unprecedented action of May 22 had to be made at a level higher than the prosecuting attorney and the exclusion of the House Counsel was a bone-headed move, especially since they stated that it was "policy" to do so. I wonder who came up with this policy, the AG?

So does the motion and the memo cover the issue adequately, or at least enough to sway the presiding judge or SCOTUS? And what is with the total exclusion of counsel in a situation when a neutral observer is supposed to there according to usual procedure?
5.26.2006 12:31pm
Angus:
Interesting tack. Of course, the Speech and Debate Clause does not use the words "search" or "seizure", so, by your method of Constitutional interprpetation, there can be no issue with the Saturday Night Raid.

From Art I, Sec 6.
"...and for any speech or debate in either House, they shall not be questioned in any other place."

Is not a search and legal evaluation of a document's contents a questioning of them? Are the FBI agents not asking: "Does this (internal memo, draft of a speech, notes of a discussion of a pending bill, etc.) contain mention of anything illegal?" Whether or not the answer is yes or no, it is still a questioning.
5.26.2006 12:37pm
A.S.:
"foreign intelligence" under Article 2? Can you post the text where that appears.

Same place that "search and seizure" appears in Art I Sec 6.
5.26.2006 12:41pm
A.S.:
No, Angus. "Question" is a question. Search is a search. At least if your method of Constitutional interpretation is ultra-textual, as, apparently, is your method for Art. II.
5.26.2006 12:42pm
Evelyn Blaine:
Hypo for those untroubled by the search: could Congress order its sergeant-at-arms to enter the premises of the White House, or the CIA, or the Pentagon, to obtain documents which had been subpoenaed and were not forthcoming or to make arrests in view of a contempt trial at the bar? If not, why not?
5.26.2006 1:33pm
Anonymous Reader:
Evelyn,

In your hypo, the relevant questions would be, is someone in the executive under investigation for a crime? Do they have probable cause to conduct the search? And do they have a warrant for the search? Have other means been exhausted to receive those materials?

To many have been treating this as a executive search for absolutely no reason. For us lay-people, there's a HUGE difference.

Anonymous Reader
5.26.2006 2:10pm
RHD (mail):
A couple of commenters point out that, assuming there is any real threat to the independence of Congress here, Congress can address it by adopting appropriate legislation. That applies whether the objection is that Congressional offices should be immune for the reach of a search warrant issued in the ordinary course of criminal procedure, or whether it is that special procedures need to be adopted whenever such a search warrant is executed. No such statute has been proposed, let alone adopted. If any were to be proposed and voted on, Congress would have to answer to the voters, which is a result that certainly accords with the structure of the Constitution. Obviously Congress has an interest in adopting such a statute if its independence is really threatened. So this seems like an instance where existing law, which contains no prohibition on the execution of a search warrant calling for the search of a legislative office, can be changed by statute if need be. But until it is, there is no legal infirmity in conducting such a search.

The Speech and Debate Clause presupposes public acts by legislators and grants them personal immunity from being "questioned" about them "in any other place." That is different, both in form and substance, from an evidentiary privilege. Truly privileged information is immune from disclosure, and thus cannot be obtained let alone used. When privileged information is obtained improperly, it is suppressed and thus is not available for use in any proceeding. The Speech and Debate Clause presumes the availability of the information -- the paradigm is a public speech on the floor of Congress -- and thus concepts of "evidentiary privilege" are a poor fit.

Additionally, there is nothing in the text of the Speech and Debate Clause that would allow anyone other than the particular legislator who uttered or authored the "speech or debate" at issue from objecting to its use "in any other place," including a federal courtroom. In that sense, the protection is personal to the Congressional member uttering or authoring it. Imagine, for example, that in a speech on the floor of Congress, a member stated that he had knowledge of a conspiracy involving others (including other members of Congress). The text of the Clause requires the conclusion that the member's speech cannot be used against him, but says nothing limiting its use against the member's co-conspirators (assuming the member had joined the conspiracy). Imagine further that the prosecution indicted the Congressional member for his role in the conspiracy (and did not offer the member's speech as evidence), and separately indicted all other members of the conspiracy (and offered the member's speech as evidence; put aside other possible evidentiary objections to the use of co-conspirator statements such as the unavailability of the member to be crossed on the "speech or debate"). What in the Speech and Debate Clause would support an argument by the co-conspirators to suppress the evidence provided by the member's "speech or debate" on the floor of Congress? Nothing that I can see.

The argument about non-public legislative proposals being protected by the Speech and Debate Clause is interesting. But it is supported more by general notions of separation of powers than anything in the Speech and Debate Clause, among other reasons because that Clause presupposes public speech. The separation of powers is, however, itself only a way to make sense of the design of the Constitution, and cannot trump specific provisions. My problem with Medis' argument is that Art. 1, Sec. 6, adopts a limited personal immunity for members of Congress from "arrest" -- clearly, a far greater intrusion on the ability of a legislator to carry out the legislative function -- with express exceptions for cases involving a "felony." With respect to the Saturday Night Raid, the Speech and Debate Clause and/or the separation of powers doctrine is being invoked to create a much broader immunity for a far lesser intrusion on the ability of a legislator to carry on the legislative function -- the execution of a properly issued search warrant, pursuant to the generally applicable law of criminal procedure governing the issuance and use of warrants for that purpose. That doesn't work for me.
5.26.2006 2:34pm
Jam (mail):
For those proposing legislation:

1) Are you talking about rules, regulations in the operations of the Congress?

2) Are you talking a law requiring Senate reconciliation and POTUS signature?
5.26.2006 2:56pm
percuriam:
Hypo for those untroubled by the search: could Congress order its sergeant-at-arms to enter the premises of the White House, or the CIA, or the Pentagon, to obtain documents which had been subpoenaed and were not forthcoming or to make arrests in view of a contempt trial at the bar? If not, why not?

First, executing a warrant or the subpoena or an arrest would be an executive function (enforcing the law) so I am unsure if Congress could do that. I think even contempt prosecutions for non-compliance of subpoenas issued by Congress have to be referred to the executive branch for prosecution. Second, even assuming such action is needed to effecutate a legislative function--e.g, fact gathering--why would they need to get a warrant when there is no reason to believe the documents are evidence of a crime? Contrast Jefferson, who has a motive to destroy or hide the documents. Third, there is nothing explicit in the constitution that prevents the scenario from happening. So the fight is really a political one. I am untroubled because the executive branch in this case went beyond its obligation under the constitution by requesting the documents, getting a warrant, and also are taking steps to respect the legislative thought process.

On another note, in would be interesting to see a showdown between the DOJ vs Supreme Court Police vs the Capitol Police. Who would win? I am willing to bet that the executive mas more guns than Congress' Capitol Police.
5.26.2006 2:58pm
Evelyn Blaine:
percuriam wrote:


I think even contempt prosecutions for non-compliance of subpoenas issued by Congress have to be referred to the executive branch for prosecution.


The general procedure is statutory prosecution of contempt, but Congress retains the power to try and punish offenders on its own, although it hasn't been used in many years.

How about this one: if the House of Representatives impeached the President, could the Senate order the serjeant-at-arms and the Capitol police to search the White House for incriminating evidence? The Senate would exercising a unique quasi-judicial function of the highest importance, and one textually committed to it by the Constitution; it would be very strange to suppose that it didn't have all necessary authority to issue orders to obtain evidence in every normal manner, provided that the Fourth Amendment reasonableness requirement was obeyed.

I think that the specific questions raised by the Jefferson case may be overblown, but the issue in general is a fascinating, and largely untouched, area for constitutional speculation.
5.26.2006 4:12pm
Angus:
The Speech and Debate Clause presumes the availability of the information -- the paradigm is a public speech on the floor of Congress -- and thus concepts of "evidentiary privilege" are a poor fit.

The Speech and Debate clause does not presume that that information has to be public, it merely presumes that legislators cannot be questioned about it, regardless of how it was found out. Nor does it require that the congressman in question objects to it. It is a Constitutional prohibition which exists regardless of various hypotheticals.
5.26.2006 5:12pm
RHD (mail):
Angus contends that "The Speech and Debate clause does not presume that that information has to be public ..." But the words "Speech" and "Debate" certainly suggest public acts --no one is really contending that those words, as used in Art. 1, Sec. 6, were intended to include a "speech" one makes to the mirror, or a "debate" one has with oneself. The text reads: "for any Speech or Debate in either House ..." The phrase "in either House" just underscores the idea that public acts are the focus of the Constitutional text. It's possible to read into that language of Art. 1, Sec. 6 a broader purpose, and to read this text in light of other separation of powers provisions that are found in the Constitutional text and other writings of the Framers, and then to contend that the purpose so divined (as distinct from the Constitutional text of Art. 1, Sec. 6) requires the protection of non-public acts by members of Congress. But arguments from purpose or design are weaker than straightforward arguments from text; and it is important to be clear when the argument proceeds from purpose/design and when it proceeds from text. There is no avoiding the fact the paradigm framed by the text of Art. 1, Sec. 6 is a public act by a member of Congress -- a Speech or Debate on the floor of either House.

Nor does the text support the notion that the Speech and Debate Clause "is a Constitutional prohibition which exists regardless of various hypotheticals." What Art. 1, Sec. 6 says is: " ... and for any Speech or Debate in either House, they shall not be questioned in any other Place." The "they" in that phrase refers back to the "Senators and Representatives" in the first sentence of Art. 1, Sec. 6. It doesn't say that anyone else can't be questioned in any other place. Again, one can frame arguments from purpose or design that seek to expand the reach of the text. But that is quite different from making an argument from text, particularly where the text is specific about who cannot be "questioned."
5.26.2006 5:42pm
Craig C. (mail):
This comment is a little belated, but the procedure for searching documents in possession of a lawyer in California is at Cal. Penal. Code Section 1524(c). Essentially, the court that issues the search warrant appoints a special master to accompany police when they execute the warrant. The master is an attorney from a list of "qualified attorneys" kept by the State Bar. See Section 1524(d). The master requests that the party whose property is being searched turn over the documents items listed in the warrant, and if in the master's judgment the party doesn't cooperate, then the special master can conduct a search of the areas indicated in the warrant.
5.26.2006 6:42pm
Angus:
There is no avoiding the fact the paradigm framed by the text of Art. 1, Sec. 6 is a public act by a member of Congress -- a Speech or Debate on the floor of either House.

Are you saying that a meeting of two Congressmen (or an exchange of correspondence between them) to discuss legislative proposals is "speech" or "debate" only when they speak very loudly on the floor of the Senate or House?

Ridiculous.
5.26.2006 7:08pm
srp (mail):
RHD's analysis is the most straightforward one--on an earlier thread, I made a similar argument. Apparently, however, the Supreme Court has seen fit to add some emanations and penumbras in a couple of decisions, which leaves us in the usual stare decisis vs. textual literacy shootout we've all come to know and love.

It seems pretty obvious from the text that speech and debate are exactly the public statements made on the floor or in committee hearings. One wants to prevent the executive from suppressing public debate by investigating legislators for what they say. But there's nothing there to suggest any special privilege for papers, etc. And as I argued in the earlier thread, there's a good argument that the legislative branch should not rely on secrecy of deliberation anyway, as a matter of its basic functions. It's pretty funny that the independent agencies often have all kinds of rules to prohibit communications among commissioners out of public view, even though the agencies have executive functions, but the Congress wants its own purely legislative activities to be shrouded in darkness.

Regardless of the constitutional issues, though, it seems to me a good thing if the executive's enforcers are restricted from the legislature's premises. As I noted, Congress has every power it needs to protect itself, if it but has the political courage to use them. Passing the buck to the Supreme Court is not the right way to maintain the balance between the branches.
5.26.2006 9:29pm
Medis:
To sum up a bit:

Some seem to be questioning the conclusions in points 1-3 of Professor Volokh's post, perhaps based on a textual analysis of the Speech and Debate clause (although I don't see much of a counterargument being offered to the originalist arguments upon which the Supreme Court has relied). But the bottom line is that the DOJ does not seem to contest those points.

Others seem to be asserting the need for a broader protection of congressional spaces, perhaps based on a general separation of powers argument (not specifically the Speech and Debate clause). Again, regardless of the merits of those assertions, Hastert and Pelosi do not seem to be going quite that far.

The issue in practice seems to be within Professor Volokh's Point 4. As I understand it, Hastert and Pelosi are suggesting something along the lines that the House, rather than the FBI, should have retained control of the documents while any Speech and Debate clause issues were being resolved. In that sense, I suspect that they will come up with something like the procedures in California for the attorney-client privilege, but with an officer of the House serving in the Special Master role. As a sidenote, if that is right, the most interesting and perhaps controversial design issue may be what role the courts will play, and under what rules.

Finally, I note that the Washington Post has an article claiming that David Addington was a leading internal critic of the search (and here, by the way, I would give him credit for some consistency of principles when it comes to separation of powers issues). Conversely, the article claims that AG Gonzales, DAG McNulty, and FBI Director Mueller all suggested the possibility that they would resign if the White House determined that the documents should be returned.

I actually find that last bit completely astonishing, and I don't quite understand why they considered it an issue worthy of that sort of discussion (although supposedly it never matured into an actual threat). Anyway, apparently that is what sparked the President to initiate a "cooling down" period.
5.27.2006 5:35am
Anonymous Reader:
Medis,

I read an article about the threats of resignation. I believe they were made because there was talk of the documents being returned for political reasons. These people have pledged to do a job and uphold the Constitution and the laws of the US and if a crimial investigation was going to be tampered with or pushed aside for political reasons, you can't blame them for possibly taking those steps. Kind of being asked to look the other way from a crime just because politics is involved .

Maybe someone can point to statements from the Capitol Police or Sergeant at Arms as to what actually transpired in the months prior to the raid and that Saturday. If it comes out that those people were in fact told or aware of the subpoena and still did nothing about it then that would change of the dynamics of the situation, in my opinion anyways.

Anonymous Reader
5.27.2006 8:47am
Medis:
Anonymous Reader,

Perhaps the discussions in the White House did take on an overtly political tone. But I hope they weren't saying that returning the documents at the request of Hastert and Pelosi would count as political interference per se. It seems clear to me that insofar as Hastert and Pelosi were asserting what they sincerely believe is a constitutional protection provided to members of their House, that gave them standing to protest. And in that sense, I wouldn't necessarily accuse the White House of acting on the basis of politics if people like Addington were saying that Hastert and Pelosi were actually right on the law.

Incidentally, I'm not sure why you think mere awareness that Jefferson was refusing to comply with a subpoena implies that the Capitol Police would have to act in some way. All sorts of activities could be going on in such a case, such as pending motions to quash. And even if Jefferson was simply defying the Court, the remedy would be for the Court to hold Jefferson in contempt and subject him to sanctions. But unless such sanctions were ordered, and unless the Capitol Police were specifically requested to aid in the imposition of such sanctions, they would not have the authority to do anything about the subpoena.
5.27.2006 12:35pm
BK:
These idiots in Congress are taking the Nixon position- they have a privilege, and thus no action against them is possible. They can just ignore a subpoena indefinitely.

Even Nixon didn't do that: when he got a subpoena he had a problem with, he filed a motion to quash and litigated the issue, ultimately losing.

The arrogance and abuse of power in CONGRESS is just as bad, in this instance, as anything they are accusing the executive branch of. Plus, they talk about the executive and fail to note that the judiciary approved this search warrant.

Guess what: congressional offices are not a safe house for evidence of bribery and corruption, any more than the oval office or a judge's chambers. I am glad principled people in the DOJ were willing to leave their jobs rather than return this evidence to a crooked congressman.
5.27.2006 2:00pm
Medis:
But that's the thing, BK--agents of Congress did not get a search warrant and then raid the White House and seize documents in order to investigate Nixon.

Again, I think Hastert and Pelosi agree with Professor Volokh--this is an issue of how the seizure of documents was done, not whether the investigators should be able to ultimately get the necessary evidence.
5.27.2006 5:19pm
Anonymous Reader:
Medis,

But the problem is the fact that Hastert and Pelosi have said they wanted the documents back from the investigators. I'm not very knowledgeable about the entire Speech and Debate Clause and most of what I know I gleaned from different posts on the web, but should anything legislators do be secret and kept from the public? Does the Constitution say anywhere that Congress can act outside of public scrutiny? Because to me, it sounds like Congress doesn't want the public or anyone outside their "circle of trust" to view these documents.

I believe I read somewhere that Congress, by their very nature, can only operate in public. So that the people can judge for themselves the performance of their legislator. If there are backroom wheeling and dealing going on, can anyone rightly say that they are now doing the business of the people? I know that was a little off topic, but I think it's important.

Also, I agree that the executive can't and shouldn't be able to intimidate or harass members of congress for their "speeches or debates". But doesn't Congress do that all the time? I just read that Senator Frist ordered AG Gonzales to confer with him. Are executive branch members subordinate to another branch? If Congress subpoena's records or people to stand in front of a hearing, can the executive refuse? Or even the judiciary? Has a sitting Supreme Court Justice ever been ordered to testify at a hearing?

I know, I'm just throwing out a lot of questions and no answers, but to us layfolks, they completely color our view of our govt.

Anonymous Reader
5.27.2006 5:43pm
Medis:
Anonymous Reader,

Hastert and Pelosi asked for the seized documents back, but have also explained that they would cooperate with investigators to make sure they got any unprotected evidence. In general, they have said that they want to put procedures in place to make sure that such investigations can be conducted without infringing the protections of the Speech and Debate clause. So, as Professor Volokh explained: "it is an argument of the 'the search would have been just fine, but only with this extra procedure that we wanted them to implement' sort, and not of the 'the search is unconstitutional, period' sort."

Incidentally, I don't know what you read, but Senator Frist cannot simply order the AG to meet with him. As for subpoenas, officers in the Executive Branch have in fact sometimes refused to comply with congressional subpoenas, citing things like executive privilege. In such a case, Congress can vote to hold the official in contempt. They then must refer the matter to a U.S. Attorney for action. Although this power exists in theory, as I understand it hasn't really been used in practice--usually some sort of compromise is worked out at some stage in the process. Moreover, it may be a bit hard to get the U.S. Attorney to take action against an executive official.

Again, the equivalent of this case would be something quite different--it would be like an Executive official working in the White House claiming executive privilege covered some documents in his possession, and Congress then sending some of its agents into the White House with a search warrant. That has never happened.
5.27.2006 6:04pm
Medis:
Anonymous Reader,

As an addendum, apparently there is an OLC opinion, 8 O.L.C. 101 (1984), arising out of the Gorsuch case, which concludes that a U.S. Attorney cannot be required to bring a contempt action where the executive official was directed by the President to invoke executive privilege.
5.27.2006 6:13pm
nedu (mail):
Article 1, Section 6, Clause 1 may be interpreted in light of Blackstone's commentaries, 1:159—61, 1765:
The privileges of parliament are likewise very large and indefinite; which has occasioned an observation, that the principal privilege of parliament consisted in this, that it's privileges were not certainly known to any but the parliament itself. [...]

Privilege of parliament was principally established, in order to protect it's members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. [...]

Some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. [...]

[F]reedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and goods; which are immunities as antient as Edward the confessor, in whose laws we find this precept. “Ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax:” and so too, in the old Gothic constitutions, “extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu.” This includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. [...]

Neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seised; without a breach of the privilege of parliament.
5.27.2006 11:57pm
williamodouglas (mail):
WODL:

Perhaps the most dismaying aspect of this entire fiasco has been the general lack of perceptiveness by the public at large as to what is actually at stake and in play. I am all for free speech, but some of the comments against Hastert's action are simply uninformed with respect to Constitutional law, criminal law, criminal procedure and legislative procedure, not to mention how politics really work on the Hill.

I will attempt my version of a Cliff's Notes on this subject:

1. Protection against a search does not equal criminal immunity.

The fact that a search warrant was issued by a Republican judge who is known to be a prosecutorial favorite in Alexandria, Virginia, does not necessarily indicate that such a search warrant was properly issued. At some point, this may have an effect on the admissibility of the seizure in court, and that determination will be separate from the determination of the propriety of the warrant.

Regardless of the turgid nature of the paragraph above, long-story-short= Jefferson can be prosecuted and no one is arguing anything else.

2. Congress may indeed keep certain internal processes and deliberations secret, regardless of what some think that they might have learned in elementary school.

3. While the Speech and Debate clause is relevant, the existence or not of a privilege against search can be deemed to follow from the structure of the Constitution, regardless of the explicit text. If you don't like this, just remember that George Bush and the Executive Branch derive much of their power from the same "implicit" textual analysis.

4. That fact that such a search had never before happened may or may not bear on the constitutionality of the search, but what it indicates foremost is the political stupidity of Gonzalez, and his undertaking a battle that he is destined to lose, even had he obtained some sort of short-run pyrrhic victory. Sure, he may be a hero temporarily on the Rush Limbaugh program, but when it comes down to Justice getting what it wants in the future, Members of Congress are not going to forget his actions.

5. Much of this debate is irrelevant with respect to Congress, because even if the Supreme Court ruled against them on the issue, Congress can achieve exactly what it wants via a whole host of ways through legislation involving jurisdiction, evidence, criminal penalties and its inherent power of the purse.

While it may not be politically prudent to do so in the short-run, such changes could be made at any time and there is nothing that the Executive Branch can do to thwart it, if such laws should be passed over the President's veto.
5.28.2006 11:52am