Searching Rep. Jefferson's Office

We haven't heard much in the last few days about the search of Representative Jefferson's congressional office. Undoubtedly negotiations are underway about what to do with the things seized during the search--they have been placed "under seal"-- and probably there will be some sort of compromise.

But the issue is pretty important, and, depending on the precedent set in this case, it will could certainly come up again. I think the consensus, in the immediate aftermath of the search, was that there was no plausible constitutional basis for the bipartisan outrage over the search of Rep. Jefferson’s office. I don't think I agree with that consensus. I wouldn't say that a Representative's (or Senator's) office should never be searched. But on the other hand it's not just a garden-variety search, and maybe it should be subject to stricter rules. Some thoughts:

1. The question, as I said, shouldn’t be whether the search was absolutely forbidden. It’s too easy to think of cases where we’d want to allow such searches. The real question is whether, as a constitutional matter, it should be harder to justify a search of the office of a member of Congress than it is to justify the search of some other office.

Specifically: perhaps a search like this should be allowed only if the government shows that it was unable to obtain (or is unlikely to be able to obtain) the evidence by a subpoena. In 1978, in Zurcher v. Stanford Daily, the Supreme Court refused to apply such a rule to searches of newspaper offices. (Congress responded by enacting a statute--applicable to the states as well as the U.S.-- that protected newspaper offices from searches. Several states adopted even more protective statutes. More on this below.)

But there are stronger arguments for applying such a rule to the office of a Member of Congress than there are for applying it to the press. Apparently Rep. Jefferson and House lawyers were negotiating over a subpoena when the search took place, so it’s not obvious what the outcome should be if such a rule were applied here. But certainly the Justice Department hasn’t conceded that such a rule applies.

2. It’s true that there’s no obvious basis for this rule in the text of the Constitution. You can’t easily derive such a rule from the language of either the Speech or Debate Clause or the clause protecting members of Congress from arrest in certain (very limited) circumstances. Perhaps such a rule could be imported into the Fourth Amendment requirement that searches be “reasonable,” but that seems like a stretch.

But there are several important, settled separation of powers principles that don’t have any obvious textual basis. Executive privilege is one example. The President’s immunity from damages actions related to his conduct of his office is well established, and it is almost surely based in the Constitution; not only is there no language in the text supporting that immunity, but there is a strong textual argument against it. (Members of Congress are shielded from suit by the Speech or Debate Clause; under the expressio unius canon, that suggests that the President can be sued.) It’s generally agreed that the President cannot be indicted while in office; again there’s no clear textual basis. So it would not be that strange to infer, from the separation of powers (and, perhaps, the implications of the Speech or Debate Clause), that Rep. Jefferson’s office shouldn’t have been searched unless a subpoena would not have worked.

If you’re still not buying: Could a local district attorney order a search of the President’s personal effects, or even his person? (Let’s assume the President is traveling within the prosecutor’s jurisdiction.) I seriously doubt it, but there is no obvious textual barrier in the Constitution—nothing that would provide even the weak inferential protection that the Speech or Debate Clause provides to Rep. Jefferson. Perhaps the President is different, because he embodies a branch of government in the way that a single member of Congress does not. But wouldn’t we also be a little queasy if the FBI searched the chambers of a Supreme Court Justice? Apparently there have been searches of the chambers of lower court judges, and that precedent goes against the position I'm suggesting. But then again perhaps lower court judges are distinguishable since their offices are created by legislation, not by the Constitution.

3. You shouldn’t think that a Member of Congress, or any of the rest of us, can avoid a search just by not breaking the law. For one thing, the standard for reasonableness in this context would be probable cause, which, whatever it means exactly, will include a substantial number of false positives. Warrants are issued after ex parte proceedings, which increases the risk of false positives. More important, though, you do not have to be guilty of anything to be subject to a search. It is enough if there is probable cause to believe that evidence will be found on your premises.

So, to take the case that obviously comes to mind, if it is a crime for government employees to leak classified information, and the Department of Justice can convince a judge, in an ex parte proceeding, that leaked information might be in a Senator’s files, then, unless there’s some special rule, the FBI could search the files. It could do so even if the Senator were innocent of any wrongdoing.

4. Why have a rule that protects congressional offices? There are two main reasons. The first is that a search is extremely intrusive. The physical intrusion and disruption are bad enough. Beyond that, if the search is for papers or computer files, the law enforcement agents will, in almost every case, have to look at an enormous number of documents besides those they are authorized to seize, just to make sure they’ve gotten everything. Members of Congress, whose position makes them potential adversaries to the executive branch—that’s the whole idea behind the constitutional separation of powers—can have lots of legitimate reasons not to want agents reading their papers.

The second reason, even more important, is that citizens communicate with Senators and Representatives—that’s also a core constitutional idea—and a search will allow the executive branch to look at those communications. The risk of that happening might be enough to deter people from communicating with members of Congress at all.

I don’t think this argument is far-fetched. It doesn’t seem impossible that some potential leakers will now think twice about leaking to a member of Congress after the raid on Rep. Jefferson’s office. (Let’s assume that it’s not certain that we want to prevent the leaks.) You can also imagine a maverick member of Congress, unpopular not just with the executive but with most of the other members, who serves as a focal point for dissent on, say, a war. A search of that member’s office could be an effective way of both harassing the member and discouraging citizens who would seek him or her out, thus limiting the Representative’s ability to rally opposition to the government.

Notice that the requirement that the government first use a subpoena mitigates these problems. A subpoena allows the government to see the papers it is legitimately entitled to seek, but, in contrast to a search, it prevents the government from going through all the other papers to find them. So, to continue the hypothetical, illegally leaked material would be subject to a subpoena, but other communications would not be.

5. Maybe the best answer is a statutory fix, which is what happened after Zurcher: Congress could protect its members by legislation; if it doesn’t, that’s a sign that there’s not really a problem. Maybe, but again I’m a little skeptical. A member of Congress who voted for such a statute would be easy to attack (“they’re putting themselves above the law”), so my guess is that Congress wouldn’t do it, even if it were in the public interest. We don’t think that the Speech or Debate Clause is an unnecessary or unwise provision, or one that should be interpreted very narrowly, just because most (maybe all) of its protections could also be legislated.

So I don’t think Representatives Hastert and Pelosi were obviously right to say that this search was unconstitutional, but they weren’t obviously wrong either.

Comments

[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.