Comments on: The Hill search controversy escalates

By: percuriam

percuriam — Mon, 12 Jun 2006 14:05:57 +0000

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?

By: federalist

federalist — Sun, 11 Jun 2006 21:29:11 +0000

Correct me if I am wrong, but aren’t most Executive privilege assertions in the non-criminal context.

By: Michael Colasanti

Michael Colasanti — Sun, 11 Jun 2006 15:57:50 +0000

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.

By: grasshopper

grasshopper — Sat, 10 Jun 2006 23:01:26 +0000

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.

By: federalist

federalist — Sat, 10 Jun 2006 20:38:46 +0000

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.

By: Joe

Joe — Sat, 10 Jun 2006 16:09:49 +0000

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.

By: federalist

federalist — Sat, 10 Jun 2006 15:31:13 +0000

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.

By: Joe

Joe — Fri, 09 Jun 2006 22:59:04 +0000

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.