Discussion: The Court, the FBI and the House
(NOTE: The following brief post is provided for readers of the blog as an invitation to offer comments on the issues that it may suggest. The hope is to stimulate a serious but lively exchange.)
UPDATE 5:00 p.m. The Speaker and Minority Leader of the House on Wednesday demanded that the Justice Department return records seized from Rep. Jefferson’s office. They also demanded that the Department move in court to nullify the search warrant. Their joint statement can be found here.
UPDATE 6:55 P.M. News organizations are reporting that Rep. Jefferson filed a motion with Chief U.S. District Judge Thomas Hogan seeking the return of his files. Hogan, according to the reports, issued the warrant for the Capitol Hill search last Thursday.
The Federal Bureau of Investigation spent last Saturday night and much of Sunday going through the files of a member of Congress, in his Capitol Hill office. The member, Louisiana Democrat William J. Jefferson, is under criminal investigation by the FBI for possible bribery offenses. The “Saturday night raid,” as House Speaker Dennis Hastert called it, has stirred a serious constitutional conflict over separation of powers.
On Tuesday, the Republican leader of the House, Rep. John A. Boehner of Ohio, told reporters: “I have got to believe, at the end of the day, it is going to end up across the street at the Supreme Court. I don’t see anything short of that.”
If the issue eventually does reach the Court, it is being suggested, the Justices perhaps would make a searching new examination of the Constitution’s Speech or Debate Clause, which reads in part (Article I, Section 6): “…for any speech or debate in either House, [the Senators and Represenatives] shall not be questioned in any other place.”
Does that embody a broader concept of legislative independence than the specific wording suggests? Does it imply some protection from an FBI raid on a congressional office? What impact does it have on a court’s authority to approve a warrant for searching a congressman’s files?
Speaker Hastert has said: “The actions of the Justice Department in seeking and executing this warrant raise important constitutional issues that go well beyond the specifics of this case.”
The Speaker’s full statement on the incident, issued on Monday, can be found here. It provides a starting point for discussing the potential issues.
The idea that the executive branch can invade a congressional office and become privy to all sorts of legislative discourse – confidential or otherwise – is in direct violation of the Speech and Debate Clause, to be sure. Generally, Speaker Hastert et al would have every right to cry constitutional foul. However, the framers included the three exceptions that make Saturday’s search completely in line with constitutional practice: Treason, Felony, and Breach of the Peace. In other words, the clause does not give Congress carte blanche immunity from all proceedings, even while going about their official legislative duties. While Congressman Jefferson’s alleged conduct hardly qualifies as treason, dubiously qualifies as breach of peace, it most certainly is a felony. Under the Hastert and Boehner’s reading of the “constitutional crisis,” members of congress should enjoy something close to an island of immunity surrounding their offices and other official installations. Taken to its extreme, members could hide everything from incriminating documents to severed limbs in their offices and cite legislative privilege to preclude investigation, since those searching might uncover documents or materials that are, constitutionally, protected from such.
Claims of constitutional crisis ignore the clause’s exceptions, and the practicality that such exceptions imply. In the above example, a congressperson most decidedly cannot hide body parts in congressional offices. With probable suspicion, the offices would be searched, and the incriminating evidence seized. In the process, those searching will likely see all kinds of other materials and evidence, some of which of dubious origin or implications, but almost all of it immune from prosecution. That’s the key difference.
Considering CJ Roberts recent speech extolling the virtues of narrow rulings, I don’t see the justices “across the street” reading exceptions to the exceptions in this clause. I absolutely agree that the President has overstepped his constitutional bounds in a variety of ways, and sense that SCOTUS will indicate as much in this and next term’s decisions. But the answer to his unconstitutional exuberance is not the unconstitutional extension of legislative privilege. Allowing a warranted, in the legal and common sense, search of a congressional office represents no constitutional crisis, unless members of Congress actively — activistically? — create one.
Comment by Peter CB — May 24, 2006 @ 9:38 am
I would think that, as a practical matter, the American people aren’t going to give a fig about any “abuse” by the Executive (and Judiciary) in this case. Arguing that Congressmen have a search-free zone seems a political loser.
Comment by federalist — May 24, 2006 @ 9:43 am
How does the saying go regarding privacy?
Oh yeah: “If you’re not doing anything wrong, then why do you care?”
Isn’t that what the government always says to us in these GWOT days?
Go figure.
Comment by KipEsquire — May 24, 2006 @ 9:53 am
This was presumably not a warrantless search. This action, then, was not taken purely by the exective department; has the judicial branch not already passed on the search’s constitutionality by granting the warrant?
Comment by Simon — May 24, 2006 @ 10:23 am
The problem is that the Executive Branch is deciding which felonies it is pursuing. If there were a public list of felony activities and accusations for each member of Congress, and the Executive Branch ordered investigations of each and every accusation, then the investigation of Jefferson would be objective and acceptable. However, it appears that the Executive Branch is only investigating reported felony activity that the Executive Branch chooses to prosecute. This is an abuse of the separation of powers.
Comment by martinh — May 24, 2006 @ 10:43 am
Before everyone goes and gets all wound around the axle on this, let’s all go out and read Gravel v. United States, 408 U.S. 606 (1972) and get a sense on the Speech and Debate clause, what it covers and what it doesn’t. My opinion is (1) it’s probably a valid search, assuming there was a warrant, (2) the exact question – whether the Speech and Debate Clause covers (and protects) an allegedly criminal act (like quid pro quo bribe fueled legislation) is an open question – Gravel explicitly did not address that issue, (3) validity of the search and admissibility are two different things and (4) this investigation is being driven by partisan politics – DoJ showily going after a (knucklehead) Democrat to drive him to wrap himself in the Speech and Debate clause, providing cover to the many Republicans who might like to do be similarly clad as their turn being investigated and charged comes up.
Comment by scribe — May 24, 2006 @ 10:44 am
So, my next question:
Why weren’t such raids conducted on Cunningham or DeLay’s offices? I am not defending Jefferson, I am simply raising the question.
Why now and not then?
Comment by Ricky Bones — May 24, 2006 @ 10:50 am
Ricky:
If someone commits a crime in broad daylight, in sight of several witnesses and a police officer, is it standard police practise to get a search warrant for that person’s office? Or would it simply be considered unnecessary, because they can be convicted on the evidence readily available without such a search?
Comment by Simon — May 24, 2006 @ 12:26 pm
Rule VIII of the House Rules requires that all subpoenas for documents or testimony directed to House members be brought to the House for approval so that the House may judge whether to assert its privilege. The Senate has a similar rule. This certainly reflects a view by the houses of Congress that the Privileges and Immunities Clause is not merely personal to the Member but also appertains to the houses themselves, so that any waiver requires action by the house, as a matter of comity. Certainly the English tradition is thus. That is one reason why there are Capitol police (and Supreme Court police) — within the Capitol and its office buildings (the marble palace), the Houses (the conference) are sovereign. The police power of the US does not extend there. (For which reason, Cynthia McKinney is not indictable for allegedly striking a Capital police officer inside her office building.) Documents within the Capitol are a res in possession of another sovereign, to which federal judicial power does not extend, as the Roberts Court has just acknowledged. A motion for return of property on the ground that the court had no jurisdiction to issue the warrant should be granted.
Comment by r.friedman — May 24, 2006 @ 12:30 pm
I wouldn’t be so quick to assume a partisan motivation behind this search, given that Speaker Hastert has lined up pretty strongly against it.
The Bush White House has been pretty consistent in choosing to push search and seizure to the outer limits of what is constitutionally permissible, so I’m not surprised they did so here.
The fact that the Executive Branch is selective does not make the search invalid. Prosecution has always been a matter of discretion.
Comment by Marc Shepherd — May 24, 2006 @ 12:30 pm
I really don’t see how the Privileges and Immunities Clause applies to this case at all. And this business about the “Houses” being sovereign is nutty. Rules of Congress related to subpoenas for documents or testimony relate to official records and not to evidence of a personal crime that only has a tangental, if significant, relationship to a Representative’s official acts. CB’s post pretty much covers it.
Comment by Rexusnexus — May 24, 2006 @ 2:41 pm
r.friedman: Are you really suggesting that we do not have a system of government in which the federal soverieng government consists of three coordinate branches but that we actually have three comepting sovereigns at the federal level? That’s what it sounds like. that’s a pretty big proposition to be gleaned from a rule of one of the chambers of the national legislature. And how does that fit in with the other 50 sovereigns out there?
Comment by SDangerfield — May 24, 2006 @ 3:25 pm
Marc Shepherd:
I think scribe’s point here is that, precisely because Hastert has come out strong against the search, there may be partisan underpinnings. A Repub. coming out yelping about constitutionality and the FBI’s efforts to go after corrupt Republicans is tantamount to political suicide. Doing the same for Mr. Jefferson adds a smokescreen that makes it seem more about principle than politics. Call me a conspiracy theorist, but it seems totally within the realm of possibility that the FBI pushed the constitutional envelope on a fairly insignificant and corrupt Democrat only to allow the executive to apologize with a plegde not to do it again, this time with Delay, Cunningham, Ney, and others. I bet $5 that weirder machinations than that are already in the works.
Comment by Peter CB — May 24, 2006 @ 3:59 pm
This along with Immigration will be the 2 issues that “set off” the electorate this year. It absurd for Hastert and Pelosi to demand the files be returned. What gall. It’s obvious that Hastert hasn’t read the constitution. Read it.
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.
Nothing done by the FBI, and signed by a Judge, was unconstitutional. I for one have had it. Precedent is not unconstitutional. I usually vote straight party line. Now I plan to vote ALL incumbents out regardless of Party. No more of this “every one is bad, except my member”. My member is now longer safe. I call for everyone to support a new 3rd party. One who supports the text of the constitution, and thats all.
Chris in VA.
Comment by dante805 — May 24, 2006 @ 7:00 pm
Am I wrong to reckon that accepting a bribe on the floor of the Senate while Congress is in session is criminal conduct?
Comment by Commentator — May 24, 2006 @ 8:44 pm
Those of you who think the idea of multiple sovereigns is nutty are either unaware of history or so besotted with the unified executive theory that you wouldn’t recognize Cerebrus if he bit you on both cheeks and the scrotum.
Maybe you aren’t aware that until recently Congress tried accused contemnors before the bar of the house and imprisoned them in the Capitol jail. Or of the tradition of the House of Commons turning away the king’s messenger. In fact, English history seems to be one of competing sovereignties — the church v. the state, the guilds, the universities (surely there was a mace in your university processions, did you never wonder why?), the king v. the parliament (what was the meaning of sergeant-at-arms?). Not to mention the competition between courts — the king’s bench, the chancery courts, the evangelical courts, the admiralty courts, the commercial courts.
While we’re at it, let’s remember that, to the Founders, Felony didn’t mean any crime punishable by more than a year in prison. After all Sen. Charles Sumner was beaten near to death by a representative from South Carolina, as near as I can tell, without any consequence.
Tbis may all seem somewhat quaint, but like grand juries, these traditions are the relics of how a supposedly free people became free.
Comment by r.friedman — May 25, 2006 @ 2:47 pm
The problem with teasing search and seizure implications out of the penumbras of the Speech and Debate Clause is that the Executive itself has to review all of the plausibly relevant documents with its own eyes to determine which ones are incriminating and which ones are not.
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.
Comment by Commentator — May 25, 2006 @ 4:43 pm
r.friedman: I fail to see how Mace-bearing university processionals or Charles Sumner’s beating establish the proposition that each constitutional department of the U.S. government is itself a distinct sovereign entity (note that that is different from saying that there is no such thing as multiple sovereigns). Even if the ragbag of odd examples you cite did add up to some kind of coherent historical practice of national-government-by-divided sovereigns (a big if), that hardly is probative of the particular arrangement contemplate by the Constitution, unless it were clear that the historical practice was being embraced by the framers of the document. By your reasoning, the fact that 21st-Century property law bears traces of feudal practice within it should mean that I owe military service to my landlord, but I just don’t see that on my lease.
Comment by SDangerfield — May 25, 2006 @ 5:32 pm
Just remember, whatever judges hear this case and all the arguments, will have to deal with the House’s and Senate’s capping argument: “Rule in our favor if you want to keep your job, Judge.”
What Bush has accomplished with this is to set two of the three branches at each other, when they should be going after him. He gets to stand back and watch them try to kill each other, while he sits back and accrues more power.
Comment by scribe — May 26, 2006 @ 2:47 pm
The comment[s] that the actions of DoJ were not partisan or politically motivated just plain ignore the well established rule that nothing happens within the Beltway that is not politically motivated. Speaker Hastert’s umbrage at DoJ’s actions may well revolve around [1] the fact the Executive Branch has a 29% approval rating and is not headed north anytime soon, and [2] he, himself, may be part of the Abramoff scandall. The Speaker is concerned about maintaining Republican control of the House – that is the beginning, the middle and the end of his concern.. I think he recognizes that the American electorate are sick and tired of this Administration, and, an AG who somehow feels torture is aceptable.
I, personally, am pleased to see this as I think the debate is historically of interest, and, notwithstanding the exceptions to the SD Clause, will bring the Constitutional scholars out of the woodwork.
Comment by BernieK — May 26, 2006 @ 3:13 pm
If what I hear on the news is right, this was the first time the Executive ever caused a member of Congress’s office to be searched. That suggests two things. First, since this is hardly the first time a member has been suspected of bribery or other felonies, prior administrations had more doubts or discretion than this one. But that’s hardly a novel observation about the Executive branch under this administration. Second, speculate as we might, there is no precedent that seems close enough to give us very clear guidance, so all we can really do is sit back and watch the fun. That’s not meant to discourage further discussion – as if that were likely – only to say that we all need to remember that, unless someone out there is aware of some historic tradition or precedent that hasn’t found its way to the surface yet, we are working pretty much in the dark.
Comment by skeptik — May 27, 2006 @ 2:33 am