The question I would like answered is why a congressman who defied a valid subpoena for eight months is still a congressman. Mr. Hastert and Ms. Pelosi, please take a break from your huffing and puffing and explain why you are not keeping your own House in order. If congressmen are going to be exempt from the searches the rest of us are subject to, whether by Constitution or by custom, then Congress has the duty to ensure that individual members do not exploit those exemptions to cover corruption. That is why the Constitution gives the House the authority to expel a member.

This is not an incident where police powers are being used legitimately to ferret out criminal conduct. It is an incident in which the Justice Department, like the Defense Department, has violated established standards of civilty and respect for the rule of law. The Founders would not have expected that in a free society, the Executive would be permitted to employ police powers in the halls of the Legislative Branch.

I don’t. The search was duly authorized by a federal judge, and conducted pursuant to a valid warrant.

The speech and debate clause protects activities, not places.

It doesn’t turn a congressman’s office into the equivalent of the Forbidden City.

The First Amendment protects books, but that doesn’t mean police can’t search an adult bookstore and close it down as a nuisance if prostitution is occurring on the premises. (See Arcara v. Cloud Books).

Why should the rule be radically different under the speech and debate clause of the Constitution?

Congressmen should drop their claims of outrage over the search and learn to live by the same laws as everyone else.

Impeding a federal investigation, especially once a warrant has been issued, even if the obstruction is headed by House counsel and manned by Capitol Police, is not legal. As Professor Orin Kerr has pointed out over at VolokhConspiracy, Congress passed 18 U.S.C. 3105 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.”

It seems that would decisively settle the issue of whether there can be a legislative official who pre-screens evidence.

The obvious retort is that the structural implications of the Speech and Debate Clause beat a statute. I have two replies: 1. The SCOTUS precedents on the Speech and Debate Clause suggest the contrary. Remember, Congressmen could have been exempt from bribery, but Congress had passed a bribery law. Since Congress passed this warrant statute, the issue should be settled. 2. If you buy that one, then the Tenth Amendment provides any taxpayer with a right to sue the federal government for laws he doesn’t fancy.

What (1) makes more sense and (2) is consistent with the prevailing precedents on the Speech and Debate Clause is the following: when the prosecutor empanels a grand jury, Jefferson can file a motion asking that certain documents that fall within the protection of the Speech and Debate Clause be kept from exposure to the grand jury; if that fails, Jefferson may file a motion seeking to suppress certain documents at trial because they fall within the Speech and Debate Clause.

While the privilege is evidentiary, there is little to no proof that the protection precludes any investigation of members of Congress and attaches prior to the attachment of the Sixth Amendment. I have as of yet heard no convincing argument why this privilege attaches prior to the attachment of the Sixth Amendment (i.e., during the purely investigatory stage).

With investigatory powers in mind, let’s consider that proponents of this expansive reading of the Speech and Debate Clause have yet to satisfy the burden of coherence. They fail to appreciate that such legislative pre-screening is, in reality, interference in a federal investigation. What happens when the legislative official who is screening excludes (by malice or by accident) evidence that the Executive would have wanted for its investigation and ultimately would have been admissible in court? It makes much more sense for the privilege to be akin to the state secrets privilege.