« Gonzalez and the Press | Main | Harcourt on WBEZ »

June 07, 2006

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c031153ef00d8349294e953ef

Listed below are links to weblogs that reference Searching Rep. Jefferson's Office:

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

George Liebmann

Isn't the pertinent constitutional restriction the limitation on general warrants in the Fourth Amendment, deriving from Entick v. Carrington in which it was indicated that warrant requirements of specificity applied with particular force to searches of papers: "papers are the owner's dearest property...so far from enduring seizure, they will hardly bear an inspection" ?

When will Chicago become the first law school to require its students to take a course in English constitutional history, if they haven't done so in college? Even constitutional law students read none of the important texts. Macaulay may be out of vogue among some professional historians, but his first volume would do law students--and the Attorney General--no harm.

Bob

Now wait a minute...I hope you're not saying that private property of congressmen can't be searched and seized. It happens to us regular folk all the time. What makes congressmen so special? Is there another set of laws for them that I don't know about? Are they priviledged? I thought they were just common citizens, like me, who just happen to be making a living as a public servant? I don't see what the hoopla was all about. Now, if Bush personally ordered the search and seizure, then that's a whole new can of worms...like Clinton bringing down the wrath of the IRS on his opponents. But still, nothing came of that either. The president is above the law. Congress has given the executive branch so much power that, today, the president really is an elected monarch.

Chuck Ames

There is a huge problem with disputes between co-equal branches of our government, when one branch is trying to exercise power over a member of another branch.

In every other conflict of authority between the legislative and executive branch that Bush has been involved in, there has been constitutional basis for the position of the executive branch. (The NSA brouhaha, Gitmo, data mining, to name the most recent and most well known.)

A little known, or at least not widely reported, fact is that Bush wasn't aware of the search, before it occurred. He wisely called a halt to the confrontation; hopefully, because he recognized there is a basis for Hastert's objections to the breach of power protocol.

A reading of the clause, without more extensive research, leads to an incomplete understanding of the purpose of the "Speech and Debate Clause". Acts performed in legislative contexts are protected, even if otherwise unconstitutional, criminal or contrary to civil statutes. See Eastland v. United Serviceman's Fund (1975) and "The Heritage Guide to the Constitution" and a review by James L. Buckley of the clause in question.

The purpose is to protect the legislative branch from being subjected to harrassment from the other branches that would unduly influence its operation. As long as Jefferson might have the defense of being within a "legislative context", the proper way to conduct such a search may be to do it, after all other motions to compel production of items have been exhausted, in the presence of Capitol Police.

Because of his status, Jefferson has that legislative context defense available to him, even regarding the items that were obtained from cold storage in his freezer. That's just one of the 'perks' we extend to a legislator, by electing him to that position. It's not the same as an ordinary non-legislator citizen, for the reasons cited above and probably some of the reasons in the original article.

Bob

Chuck,

You said, "In every other conflict of authority between the legislative and executive branch that Bush has been involved in, there has been constitutional basis for the position of the executive branch. (The NSA brouhaha, Gitmo, data mining, to name the most recent and most well known.)"

What were the constitutional basis for these positions in each of these cases?

"A little known, or at least not widely reported, fact is that Bush wasn't aware of the search, before it occurred."

Yes, that's the story I would stick with if I were him also.

"That's just one of the 'perks' we extend to a legislator, by electing him to that position. It's not the same as an ordinary non-legislator citizen, for the reasons cited above and probably some of the reasons in the original article."

I gather that you see no problems in creating a special class of citizen. I thought that one of the main tenents of the constitution was that all citizends are equal before the law. I don't recall a "special perks" clause extended to public servants. Perhaps you could refresh my memory.

Bob

Chuck,

For your review...the Speech and Debate Clause.

"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."

This clause only prevents arresting and holding for questioning a congressman on his way to or from a speech or debate in either house. It does not restrict or prevent search and seizure of personal property. Jefferson was not arrested or detained. This clause does not have any bearing on what happened to Jefferson's property, unless you read into it something which is not there, which I admit that politicians are notorious for doing.

GARY

IF NANCY PELOSI AND DENNIS HASTERT CAN AGREE ON ANYTHING, IT IS PROBABLY HAS SOME MERIT. THE "BIPARTISAN LEGAL ADVISORY GROUP" HAS FILED A BRIEF IN SUPPORT OF THE MOTION TO QUASH THE SEARCH WARRANT. [I FOUND I ON THE SCOTUS BLOG]

I FIND IT INTERESTING THAT THE JUSTICE DEPARTMENT FAILED TO NOTIFY THE GENERAL COUNSEL OF THE HOUSE OR ANY MEMBER OF THE HOUSE IN ADVANCE OF THE SEARCH. YET, THEY DID HAVE THE MEDIA STANDING BY TO RECORD THE EVENT.

THE GENERAL COUNSEL, JEFFERSON'S LAWYER, AND ALL OTHERS WERE BARRED FROM BEING PRESENT DURING THE 18 HOUR SEARCH.

I FIND IT ALSO INTERESTING THAT ON A PRIOR SEARCH OF JEFFERSON'S VEHICLE, THE GENERAL COUNSEL WAS ADVISED AND PRESENT WHEN THE SEARCH WAS IMPLEMENTED.

THE SUPREME COURT HAS RULED THAT LEGISLATIVE MATTERS ARE PRIVLEGED. THE WARRANT ACKNOWELEDGED THIS FACT BY ESTABLISHING A SCREENING GROUP TO LOOK AT THE DOCUMENTS SEIZED AND DETERMINE WHAT WERE LEGISLATIVE DOCUMENTS AND WHAT WERE PERSONAL. [DO WE REALLY WANT FBI AGENTS TO MAKE THAT CONSTITUTIONAL DECISION?]

THE BRIEF CONTAINS NUMEROUS QUOTATIONS I FIND PERSUASIVE:
"CONSTANT EXPERIENC SHOWS US THAT EVERY MAN INVESTED WITH POWER IS APT TO ABUSE IT, AND TO CARRY HIS AUTHORITY AS FAR AS IT WILL GO . . . .TO PREVENT THIS ABUSE, IT IS NECESSARY FROM THE VERY NATURE OF THINGS THAT POWER SHOULD BE A CHECK TO POWER." Montesquieru, Spirit of the Laws.

"THE GREAT SECURITY AGAINST GRADUAL CONSENTRATION OF THE SEVERAL POWERS IN THE SAME DEPARTMENT, CONSISTS IN GIVING TO THOSE WHO ADMINISTER EACH DEPARTMENT THE NEC3ESSARY CONSTITUTIONAL MEANS AND PERSONAL MOTIVES TO RESIST ENCROACHMENTS OF THE OTHERS." FEDERALIST 51
GARY

Bob

Gary,

First, it's rude to shout (you know...all caps).

The fact that Pelosi and Hastert agree on this, does not give it any merit.

Please give me a reference that the Supreme Court has ruled that legislative matters are priviledged. Is this a legislative matter? And, if so, how is it priviledged? Direct me to this ruling.

Establishing a screening group does not acknowledge proof of priviledge. Did the warrant explicitly state that the screening group was required due to this priviledge? Please direct me to the clause in the warrant that states this.

GARY

Bob

1. Rude:
A. When you get to my age it is ok to be rude.
B. Sometimes you have to shout to be heard.
C. Some of us have to write in all caps because we lack the eyesight to see this little print.

2. Legislative citations:
A. Eastland v. United States Serviceman's Fund, 421 US 491,502 (1975) stands for the proposition that Consititution insures "that the leigslative function the Constitution allocates to Congress mey be performed independently>"
B. U.S. v. Johnson, 383 U.S.169,178 (1966) stands for the proposition that the Speech and Debate Clause "serves the additional function of reinforcing the separation of powers so deliberately established by the Founders."

3. Search warrant:
A. Paragraph 141 of the affidavit states that the filter team is to review seixed materials "to determine if they may fall within the purview of the Speech of Debate privilege . . . oar any other pertinent privilege."
B. The same paragraph goes on to state that the Filter Team shall immediately provide to the prosecution team any documents the Filter Team concluded were not covered by the Speech of Debate or other Privilege."

Hopefully this responds to your questions.

Gary

P.S. PLEASE ACCPT IN ADVANCE MY APOLOGIES FOR SPELLING AND OTHER SIMILAR ERRORS. I CAN NOT SEE THE SMALL PRINT VERY WELL.

nedu

"When you get to my age it is ok to be rude."

No. It's not.

A child's rudeness or impatience is excusable and correctable.

A teenager's rudeness is nothing more than rebellion.

But beyond a certain age, rudeness becomes a calculated insult.

Kimball Corson

Too bad the search was not of the individual offices of Scalia, Alito, Roberts and Thomas. We might now have have a 24 hour knock and announce rule in all circumstances.

Bob

Gary,

I read both case notes for the two cases you mentioned. Neither case has anything to do with searching a congressman's private property.

Again, the Speech and Debate Clause.

"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."

This clause only grants "privilege from Arrest during their Attendance at the Session." The intent of this clause was to prevent a congressman from participating in Congress. The intent of this clause was not to protect his private property from search and seizure. If it had done so, then congressmen would be set above the law.

Also, they believe Jeffeson to have commited a felony. Therefore, again, as a potential felon, he is not even protected by this clause, as it so states. Besides, Jefferson was not arrested, therefore, this clause doesn't even apply.

Now, these other cases you cite don't even address these issues...they are red herrings.

The comments to this entry are closed.