The Hill search controversy escalates
Lawyers for the leaders of the U.S. House of Representatives have asked a federal judge in Washington, D.C., to rule that the Justice Department acted unconstitutionally in staging a prolonged search of the congressional office of Rep. William Jefferson, a Louisiana Democrat under investigation on possible bribery charges. On Wednesday, the House’s Bipartisan Legal Advisory Group filed a friend-of-court brief in the case in which the congressman is seeking the return of all items taken from his legislative office.
The leaders asked U.S. District Judge Thomas F. Hogan to rule that both the warrant — issued by Hogan himself — and the search violated constitutional protection given the House in carrying out its legislative duties. But the leaders did not immediately embrace Jefferson’s demand for a return of the papers and computer hard drives gathered up in the 18-hour search of his office overnight on May 20-21.
Instead, Hogan was urged, in fashioning a remedy, to “take into account…the outcome of current negotiations between the House and the Justice Department aimed at devising an agreed-upon set of protocols under which search warrants can be executed constituitonally on House offices.”
The 43-page document, along with ten appendices, lays out in full the House’s constitutional arguments. The document often uses sharply critical language in describing the conduct of the FBI in the Capitol Hill search, and directly challenges an FBI affidavit that implied that the search was necessary because Jefferson might have destroyed documents. Moreover, it accuses the Department of relying on discredited legal precedent.
In a challenge to Judge Hogan, the House leaders wrote: “It is easy to treat this case, as many in the media and public have, as a simple matter of subjecting Members of Congress to the same laws as everyone else, or bringing an allegedly corrupt Congressman to justice. It is much more difficult to recognize the grave threat the Justice Department’s unprecedented actions pose to our tripartite system of government and heretofore remarkably successful system of checks and balances. However, it is essential that this Court do so.”
While the Department may have been “well-intentioned,” the brief suggested, it is a “dangerous assumption” to trust the Departrment “not to abuse the precedent this case would establish.”
The House filing, including ten appendices, can be found here.
Earlier, on May 30, the Justice Department filed its response, vigorously defending its actions. That document has not been posted on this blog previously. It can be found here.
An earlier post on this developing constitutional dispute can be found here. That post includes links to filings by Rep. Jefferson.
Judge Hogan has scheduled a hearing in the case for next Friday.
The brief makes a few good points — my own cynicism was not that the Congress had no case, so to speak, but that they only selectively covered their legislative privileges when it was a CYA move.
Any number of other cases that would have benefit the rest of us (the brief, of course, speaks of the glories of separation of powers to overall liberty, but it is not meant to be selectively applied) showed no such concern for legislative privileges.
Putting that aside, especially with a lack of any compelling need, the executive did overstep their bounds here. The Congress has themselves largely to blame for the negative feedback from their selective concern for separation of powers.
But, this does not mean this should happen again … the 45D break hopefully settles things.
Comment by Joe — June 9, 2006 @ 6:59 pm
Those Congressional offices belong to the American people. They can be searched. It’s that simple. There’s nothing in the Constitution that makes Congressional offices into diplomatic pouches. Let’s put it this way, if a Congressman were suspected of murder, and there was probable cause to believe that evidence of such murder were in his office, there’d be no “overstep”. And since there’s no logical distinction between a murder case and a bribery case, all we have here is a bunch of smoke being blown by arrogant politicians.
Comment by federalist — June 10, 2006 @ 11:31 am
At issue is the Speech and Debate Clause involving things that cannot be questioned in any other place, which is different from our own papers that can be seized with a proper warrant.
To the degree the computers and papers involved in some fashion was related to a murder etc., so not be legislative, there are still concerns. You have to separate the protected materials, taken here en masse, and as noted in the brief this is a complicated matter that should involve the legislatures/Congress … only after the first controversy was such involvement allowed, and only in a limited fashion.
Likewise, there are special protected areas that require special protections and due care. Thus, if a murder takes place in a confessional, lawyer’s office, and so forth, you don’t just follow the exact same procedures as for everyone else. But, here, less concern was supplied, as noted in the brief, than for similar searches in the past, including of judicial offices.
Comment by Joe — June 10, 2006 @ 12:09 pm
Last I checked the Speech or Debate Clause is silent about whether Congressional offices are off-limits to the Executive acting pursuant to a valid warrant.
With respect to searching a lawyer’s office or any place that has confidential information, that’s what the court is there for.
This is a molehill being made into a mountain. Bottom line, the American people think that Congress is flat-out nuts to be taking the position it is taking. It would be one thing if it were based on some text in the Constitution, instead of some presumed penumbras of the Speech or Debate Clause, but it’s not.
This is a loser legally and politically.
Comment by federalist — June 10, 2006 @ 4:38 pm
The only thing that bugs me, ever so slightly, about this whole mess is that the DOJ’s “Filter Team” is comprised of members of the DOJ and the FBI. Otherwise, from what I’ve read in DOJ’s response and what I’ve read in the Constitution, this a non-issue. They have every right and an obligation to go get the bad guy.
Comment by grasshopper — June 10, 2006 @ 7:01 pm
I find it interesting that the Executive branch repeatedly claims “executive priveledge” to protect itself, even though that is a phrase not even found in the Constitution. It is a little hypocritical that Executive then criticizes Congress for using a explicitly named priveledge to do the same.
Comment by Michael Colasanti — June 11, 2006 @ 11:57 am
Correct me if I am wrong, but aren’t most Executive privilege assertions in the non-criminal context.
Comment by federalist — June 11, 2006 @ 5:29 pm
An interesting question–how does the House have standing to ask for the documents back in a criminal case involving Jefferson? Is it claiming it has propreitary interest in the documents seized from his office?
Comment by percuriam — June 12, 2006 @ 10:05 am