WARRANTS: Not Good Enough For Us, Too Good For You.

Let's go semi-open on the whole Jefferson search / Congressional tantrum debacle.  Possible discussion points:

(1)  How can a Congress that passed McCain-Feingold and dozed through four years of NSA warrantless eavesdropping briefings suddenly pretend to have discovered civil liberties protections in the constitution?

(2) Are the top Congressional Republicans insane or just stupid?

And more seriously - FBI raids on Congressional offices may step on the speech and debate clause if a Congressman alludes to classifed info in a speech and the FBi decides to nail down his source by checking his office files.

Here is the Times: To Ease Standoff, Bush Seals Seized Files

And Mark Kleiman had an interesting twist - sort of a J Edgar Lives! idea that the leak about Hastert also being the subject of an investigation (denied by the DoJ) was the FBI bullying the Congress.  Since the CIA is also intent on shaking off executive oversight, it is a troubling notion.  Mark introduces the theme here, and I am in broad agreement with his main point about an aggressive FBI.

However, from his follow-up post, I quarrel with this:

9. The FBI just demonstrated why it shouldn't be trusted with that power. The day after Dennis Hastert complained about the raid on William Jefferson's office, "senior U.S. law enforcement officials" told ABC News that Hastert was under criminal investigation in connection with the Abramoff scandal. The Justice Department has now denied that; I'm agnostic, and it may depend on a weaselly definition of "under investigation." (Hastert may be in the investigators' sights while still a "person of interest" rather than a "subject" or a "target.") But the leak almost certainly came from the Bureau, and the only way to read it is as punishment of Hastert and deterrence for others.

The "only way" to read that leak is as punishment?  Why are we so sure it is not heroic whistle-blowing, that Hastert has not been sitting on subpoenas from the FBI in order to protect Jefferson and, in an unrelated investigation, himself?

Maybe some hero at the FBI is trying to alert the public to the possibility that (a) the Jefferson investigation is being quashed by the House leadership; (b) the Abramoff investigation is being quashed by the House leadershp, and (c) the FBI budget will be under the ax next year, and current FBI leadership can expect reassignment to the US-Mexican border.

I don't know yet, and I don't see how Mark could.

OOPS!  "WARRANTS: Not Good Enough For Us, Too Good For You" requires a footnote to the Insta-Volokh.  I knew I would have a glitch if I put it in the title...

Comments

[clarice]

Can I vote for BOTH insane and stupid?

[Bill in AZ]

enriched moronium?

[The Unbeliever]

I like how DJ Drummond puts it: "Nothing says 'Term Limits' like both parties demanding elected people not be held to the same standards as regular folks."

[sbw]

Randy Barnett at Volokh.com quotes John Marshall:

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.

Remember that NO branch of our government stands independent of the other two. In this case the Executive Branch instigated and the Judicial Branch concurred to act on the Legislative Branch. Put in context, this is not unreasonable.

I challenge the Legislative branch to write an essay, not on "Separation of Powers" but on "Limitations of Power." Hastert's essay is due next week.

[lurker]

I don't like them being above the law. How is this different from Clinton being above the law when he was in the office?

The essay needs to address the checks and balance between the 3 branches. Right now, it's out of balance, favoring Congress and we have a runaway and out of control Congress.

[Rick Ballard]

Calendar check.

May 26 plus 45 days equals July 10 - Congress adjourns on July 30 and will not reconvene until September 4th (way too soon IMO). The 'Cold Cash Congressman' will be getting plenty of ink if he is indicted between July 10 and July 30. His steadfast refusal to acknowledge any wrongdoing is admirable and I sure hope he sticks to his guns. It will make a nice setpiece for a 'culture of corruption' campaign.

[cathyf]

Wow, Rick, do you really think that this is another example of Br'er Karl begging not to be thrown into the briar patch?

cathy :-)

[John Loki]

Some guy at Free Republic posted this:

408 U.S. 501

United States v. Brewster APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

--------------------------------------------------------------------------------

No. 70-45 Argued: October 18, 1971 --- Decided: June 29, 1972

--------------------------------------------------------------------------------

Appellee, a former United States Senator, was charged with the solicitation and acceptance of bribes in violation of 18 U.S.C. §§ 201(c)(1) and 201(g). The District Court, on appellee's pretrial motion, dismissed the indictment on the ground that the Speech or Debate Clause of the Constitution shielded him "from any prosecution for alleged bribery to perform a legislative act."

The United States filed a direct appeal to this Court under 18 U.S.C. § 3731 (1964 ed., Supp. V), which appellee contends this Court does not have jurisdiction to entertain because the District Court's action was not "a decision or judgment setting aside, or dismissing" the indictment, but was instead a summary judgment on the merits based on the facts of the case.

Held:

1. This Court has jurisdiction under 18 U.S.C. § 3731 (1964 ed., Supp. V) to hear the appeal, since the District Court's order was based upon its determination of the constitutional invalidity of 18 U.S.C. §§ 201(c)(1) and 201(g)on the facts as alleged in the indictment. Pp. 50507.

2. The prosecution of appellee is not prohibited by the Speech or Debate Clause. Although that provision protects Members of Congress from inquiry into legislative acts or the motivation for performance of such acts, United States v. Johnson, 383 U.S. 169, 185, it does not protect all conduct relating to the legislative process. Since, in this case, prosecution of the bribery charges does not necessitate inquiry into legislative acts or motivation, the District Court erred in holding that the Speech or Debate Clause required dismissal of the indictment. Pp. 507-529.

Reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion in which DOUGLAS J., joined, post, p. 529. WHITE, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 551. [p502]

[Specter]

Nice post John.

Imagine what our government would be like if Congresspeople were shielded from being able to run various nefarious and illegal schemes from their offices. That is the issue here. There was very good probable cause to search Jefferson's office. I don't think that anyone should be "above the law".

Now - my cynical side says why did Bush do this? I suspect it has more to do with ratings than anything else. He's upt to 41 on Rassmussen today. And maybe he knows there is more than enough to throw Jefferson in the clink without any evidence seized from his office....

[Specter]

OT - right now on FNC - shots fired at the Rayburn Building at the Capitol

[JohnH]

Specter
I am with you. The case against Jefferson looks strong, so what is the harm in freezing the evidence for a while? Out of Jefferson's freezer, into the Fed's.

[John Loki]

Specter,

MacRanger at macsmind blog has been speculating about the entire episode.

[Specter]

Unnamed government officials close to the investigation, but who do not have permission to speak publicly, have reported that Karl Rove was seen inside the Rayburn Office Building Parking Garage just prior to reports of shots being fired. These unnamed sources have confirmed the sighting with 20 news crews that were staking out the building. Also chiming in on the confirmation was Marc Ash and Jason Leopold of TurthNot.org. Leopold's sources say this was a deliberate attempt of Rove's part to distract Patrick Fitzgerald from announcing Rove's once again imminent indictment.

[John Loki]

Specter,

You are wrong! Leopold says it's Dick Cheney hunting.

[Specter]

LOL....not to worry then right?

[clarice]

I think the President's action was a master stroke. He looks like th only grownup in town. (Boy did I let Hastert have it in an email to his office yesterday! The man doesn't have the brains he was born with.)

[Rick Ballard]

"Wow, Rick, do you really think that this is another example of Br'er Karl begging not to be thrown into the briar patch?"

Oh no. These sort of things happen all the time. Raising a kerfuffle concerning a warrant on a rather obvious criminal is quite normal. Resolution of the issue might have some small impact should DoJ feel a need for warrants to search Congressional offices in the future. I can't imagine why they would though.

[maryrose]

The closer Jefferson's eventual indictment and conviction come to November elections the better. R/S/S strikes again. Have you noticed how frantically Pelosi is trying to get him to resign? In one day she went from asking him to step down from the Ways and Means Committee to asking for his resignation. After her double-dealing with Ronnie Earle and Rahm to get Delay this is poetic justice.

[Dwilkers]

Are the top Congressional Republicans insane or just stupid?

Horrendously arrogant, insulated, tone deaf and detached from the experience of normal Americans.

And of course politically stupid. I might even be inclined to forgive the arrogance if it wasn't so damn politically St00pid. This was loser st00pid in about 4 different ways. I have piles of doggy dooey in my back yard that aren't this st00pid.

[Rick Ballard]

Maryrose,

'Cold Cash' needs our support in his hour of need. Our justice system rests upon the presumption of innocence and Democratic Congressman Jefferson is innocent until found guilty by a jury of his peers. I think that everyone should encourage Democratic Congressman Jefferson to 'fight the good fight' right through to the end.

Here is the good party man's contact information should anyone wish to offer the same type of encouragement:

Honorable William J. Jefferson
2113 Rayburn House Office Building
Washington, D.C. 20515

Phone: (202) 225-6636
FAX: (202) 225-1988

[jwest]

Byron York is already commenting on the latest Walton rulings over at the Corner.

[clarice]

jwest..so have I check the other active thread here.

[Specter]

OT - Here are the Naysayers on Hayden:

NAYs ---15
Bayh (D-IN)
Cantwell (D-WA)
Clinton (D-NY)
Dayton (D-MN)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Kennedy (D-MA)
Kerry (D-MA)
Menendez (D-NJ)
Obama (D-IL)
Specter (R-PA)
Wyden (D-OR)

[Specter]

OhhhhNooooo....the only republican was ... Specter. Gawwwd...I wish he'd change his name.

[clarice]

Rove is certainly smart. I wonder though if we do not regard him as a genius because he is really playing in such a sea of nincompoops.

[JohnH]

Congress can't reform yet. They have to collect enough money to run for re-election in the Fall. The reform will be introduced in October.

[JM Hanes]

TM

Item #9 isn't the only weak point in Kleiman's argument, beginning with "what I've learned from Karl Rove." The left hardly needs to go to school on Rove when it comes to repetition!

#6. It's especially easy to get a search warrant in a "national security" case, such as a leak investigation.

Hell, you can get a lot more than a warrant. You can get a special counsel for life, subpoena the press or the White House, & indict anybody who annoys you.

#7. A search is a very reliable reputation-ruiner.

So is snagging $100K on film. Not to mention indictments, of course.

#4. In terms of its personnel, the FBI is and will almost certainly remain strongly conservative (both culturally and politically) and Republican.

This one is downright amusing. He feels compelled to make the observation -- and how could he resist? -- he just never quite figures out what to do with it. Maybe he realized that over on the other end of the political seesaw, you've got the leaking-like-a-sieve liberal CIA and decided not to go there.

Requiring Congress to comply promptly to subpeonas or show cause, sounds reasonable enough, but surely I'm not the only one who might find a little something to quarrel with in his proposition #11! Not that it wouldn't be fun to watch.

[clarice]

JMH, # 11 is a doozy:11. The alternative to having long criminal investigations of sitting Members is to give the Ethics Committees powers and investigative staffs that will allow them to do their own fact-finding, and change both the rules so that expulsion motions can be brought to the floor by the vote of either party. That won't do any good unless the Democrats break the "ethics truce" and start to go after Republican corruption. Once a Member has been expelled, the criminal process can take its own course and its own time. Of course a Member whose actions might have violated criminal law has the right not to testify in an ethics hearing, but his or her colleagues have the right to make the natural inference from that silence. Explusion doesn't, and shouldn't, require proof beyond reasonable doubt.

I think this is something only Rick or Soylent can do justice to.

[maryrose]

Rick:
Of course like Clinton Jefferson will not resign. Even when the FBI has him dead to rights he is going to defy evryone. Good luck congressmen ; you are going to need it. Any chance of repubs nabbing that seat?

[Rick Ballard]

"Any chance of repubs nabbing that seat?"

Not until 2064. Who the hell would want to represent NOLA other than someone comfortable among thieves?

[Jane]

"Nothing says 'Term Limits' like both parties demanding elected people not be held to the same standards as regular folks."

That clearly ios the Quote of the Day!

I've stood by this administration, happily, through thick and thin. But this is about the thinnest I can imagine.

In 2000 republicans ran on the premise that no one was above the law.

Throw the bums out!

[maryrose]

I like the term limits idea because after a while it's all about getting re-elected and not about representing your constituents. Also in the Jefferson case about thinking you are above the law. Also the Kennedy and McKinney cases come to mind as well as Cunningham.

[PeterUK]

JMH,
Don't forget the finest Congress money can buy.

[JM Hanes]

PeterUK

My sister once told me that the French think our Congressman come extraordinarily cheap.

[PeterUK]

JMH,
The cost of thieving is so high in Paris,

[steve]

You guys should all read the threads over at Volokh on the topic of the search. The consensus seems to be that having executive branch agents rummaging through legislative offices threatens the separation of powers. You don't want Presidents to be able to interfere with the legislative process.

When the executive answers legislative subpoenas, legislative agents don't enter the White House; the executive picks out the material it thinks is relevant and passes that along. The same procedure, it is argued, should be followed here--congressional people only should look at the materials and pass along whatever is relevant to the subpoena. Thus search warrants for documents should never be executed within the halls of Congress.

There is some disagreement about the basis/remedies for this issue. Some think that the Speech and Debate clause, as understood by the Supreme Court in a couple of cases, prohibits this kind of search through documents. Others look to a common law tradition--the House of Commons has a whole ritual about keeping the King's agents outside the door.

I think that the Congress has all the power it needs to protect its independent prerogatives through legislation--it could outlaw such search warrants anytime it wanted. It has not done so for political reasons (it would be unpopular), but that's no excuse for the courts to step into a political dispute. So in my view, the current search was legal and kosher, though a disturbing precedent. The correct response to this precedent is a piece of legislation restricting or blocking search warrants within the halls of Congress.

[danking70]

Steve,

I thought that part of the problem was that Jefferson and his lawyers were refusing to turn over the documents after the subpeona was issued.

No?

[maryrose]

danking:
Exactly right. If anyone else gets a subpoena they have to comply with it. Congressman Jefferson thinks the rules don't apply to him just like McKinney and the capitol police. Who died and left these two boss?

[Soylent Red]

The mist settled heavily on the blooming magnolias as the Bald Man moved through the early morning darkness.

His quick steps echoed and ground on the damp sidewalk, and as he approached the alley, a quick glance ensured he had not been followed. The Bald Man cut sharply into the alley and into a doorway, covered by an awning advertising "Farouk's Fades and Processes".

Farouk, whose given name was Latrell, was an old associate from the Houston days. He had, of late, been quite useful to the Bald Man in New Orleans operation, and had been transplanted into the urban squalor of D.C. for further operations. Farouk was a clean cut black man, soft spoken but with an intense and focused demeanor. After scanning the alley, he locked the door behind him and led the Bald Man into a back room of the barber shop.

"You've seen to it the package was delivered?" the Bald Man inquired.

"Of course I have. When have I not delivered?" Farouk asked softly, as he rolled a cigarette. "But I need to know what's going on. I have to protect myself."

The Bald Man was irritated at this comment, but was feeling indulgent at the moment. He saw no harm at this point in letting Farouk in on a few details.

"Farouk... Latrell, I want you to listen carefully. I can't tell you everything, but I will tell you what you need to know. And as far as protecting yourself, when has that been a problem? They're still finding body parts of your demolition team in New Orleans. You know The Principles will protect you."

Farouk scowled and reclined on the couch facing the desk where the Bald Man sat. He exhaled a cloud of smoke and said, "Then tell me."

The Bald Man sighed, removed the flask from his jacket pocket and took a long pull. Then he began.

"After the New Orleans operation, you were brought here under cover to continue preparation work for the Deep South AOR. We set up this front operation for you and furnished you with a substantial stipend until the time was right. Your contact inside the FBI was in fact a sleeper planted during the Clinton administration. When he reported to me that the frame up of Jefferson had been captured on tape, it became necessary to bring you in."

Farouk absorbed the Bald Man's words, and his scowl deepened. "So you already have Jefferson on tape. What did you need me for?"

The Bald Man chuckled. It really was amusing how a simple operation evaded the comprehension of even his brightest allies.

"If Jefferson was what we really wanted, we wouldn't have needed you. This is far more complex than bringing down a single man. This is about Operation Endgame Strategery."

Farouk sat up with a look of astonishment. "The Boss ordered this himself?"

Again the Bald Man chuckled. "The Boss ordered me to make certain things happen. I devised the plan."

"As you know, Endgame Strategery involves the weakening and eventual elimination of the other branches of government. Ah, of course to accomodate the future. What you have accomplished was part of that.

"Let me simplify things for you. The American public, God bless 'em, already suspect that their representatives are corrupt. They have no real inkling how corrupt, just sort of a vague suspicion. Your operation will help...mmm, clarify things a bit."

Farouk shook his head. "I still don't understand."

"Of course you don't!" the Bald Man said jovially. "By delivery the package in question into Jefferson's office, under the guise of searching and removing things from that same office, you set the stage for bi-partisan outrage.

"Now, the Constitution is fairly unclear on this, but one thing that is clear is that, all bribes and hookers aside, Americans are viscerally opposed to even the appearance of a political elite. The fools will protest, but ultimately they must all answer to the people. And the people, properly motivated, will demand their heads. The President will, quite naturally, endeavour to do all he can to see to it the people get what they want.

"But for now, we must let them bleat. Give themselves enough rope by which to hang themselves, so to speak. Then we act."

Farouk rose and paced across the room to stand directly in front of the desk where the Bald Man was taking another pull of scotch. "I will be protected. I have your assurances?"

"Of course Latrell. You are a valued resource," the Bald Man said. "I want you to stay here, by the phone, and await my instructions. I have a 5 a.m. conference call on the Schrum line that I can't miss." With that, the Bald Man rose and walked from the building, as Farouk returned to the couch to contemplate what he had done.

As the Bald Man walked deeper into the alley, making for the light at the far end, two men emerged from the shadows to block his path. He calmly approached them and stopped. He raised his right hand in a "thumbs up" gesture, drew it sharply across his throat with a hissing sound, and pressed on between the two men in black and down the alley. Had he turned to look, the Bald Man would have noticed the glint of metal blades being drawn under the service light above the entry to Farouk's shop. Instead his whistling could be heard as he rounded the corner onto the street and headed home.

Meanwhile, packages marked "Confidential" lay waiting for discovery, secreted in the offices of several prominent Senators and Congressmen. Among the contents of some were individual sized portions (ready for resale) of Afghani heroin, accounting records for a large child pornography ring, and the mouldering flesh and bone of Jimmy Hoffa's left thumb.

[J2]

That's a thread-en

[steve]

Danking and maryrose: Apparently the DOJ handbook specifies that when a member is recalcitrant with a subpoena, the feds are supposed to go to the clerk of the House and get him and the Capitol Police to do the search. As far as I can tell, DOJ didn't do this with WJ.

All this stuff is chewed over exhaustively in the Volokh posts and comment threads. They're all over this like you guys are with Plame. In my opinion, the Supreme Court precedents protecting legislative work product under the Speech and Debate clauses are a reach from the text, but they are real precedents. Still, since the Congress could legislate itself all the protection it needs, and it hasn't even tried, my attitude is that they can cry me a river.

[clarice]

SOYLENT!!SNother work of pure genius!!!BRAVO

[maryrose]

Soylent:
You are the Master of the written word.
Steve:
I'm still waiting for an explanation of the 90G's wrapped in tinfoil in WJ freezer?
Any comments about that?
My favorite was James Carville's on the Situation Room;
" I've thought about this all day and I can't come up with anything to explain that!"

[PeterUK]

"I'm still waiting for an explanation of the 90G's wrapped in tinfoil in WJ freezer?"

It was the cat's.

[clarice]

It's an old NO treat...cold cash.

[Bruce Hayden]

There is just too much still unknown here. I have heard that the House clerk or whoever refused the subpoena, but then have heard the opposite.

The big question I have is whether the FBI exhausted their remedies here and did this because of that, or if they tried to cut corners and got caught.

That said, as I said at volokh.com, I think that the reading there of the Speech and Debate clause is too broad. The real issue is that Congress has traditionally controlled the Capital and the adjoining offices, and this is in intrusion thereof. And this tradition predates our founding - apparently in Great Britain, the door is closed in the face of the Queen's emissary, and then opened after three knocks, to enforce the fact that she doesn't have control over Parliment, etc. and in reaction to a time when the King there did come into Parliment and rifle through papers. Something like that, that was presumably in the minds of our founders - though it doesn't appear to have made it into our Constitution except obliquely.

[Dwilkers]

Its interesting that you find Volokh's site as support for the idea that the search was unconstitutional Steve. I read the posts by Orin Kerr and Volokh last Wednesday on the subject and it seemed to me they were ridiculing Hastert's position that there was some special protection.

The first one I read was this one by Volokh which starts out like this:

I confess I'm pretty puzzled by Speaker Hastert's theory here.

Then I went over and read Kerr's take which says in part:

Given that the FBI obtained a warrant, what would the legal theory be that the search was unconstitutional?

I don’t think the Fourth Amendment provides such an argument. If the government can execute a warrant at a newspaper, or at a lawyer’s office, why not a Congressional office?

So I went back over there today and Volokh has a newer post talking about the objections raised in his threads, which he sums up as:

This does strike me as a plausible argument -- but it is an argument of the "the search would have been just fine, but only with this extra procedure that we wanted them to implement" sort, and not of the "the search is unconstitutional, period" sort.

I do not normally read the comment threads over there though, they descend into the sort of legal trivia that makes my eyes glaze over.

[Lurker]

House leaders concede FBI right to search

But they want the procedures established.

Why do they want new procedures established? They are not above the law.

[Lurker]

Flopping Aces:

A.G. Gonzales won't back down

Good for him and the others, too.

[kim]

Gonzales and McNulty defying Bush. Hastert defending Jefferson.

End times, but whose? Not hard to speculate.
============================

[Dwilkers]

I'm afraid the Pubs in the house are going down this year and they have absolutely nobody to blame but themselves.

I just hope they don't lose the senate too or the last 2 years of the Bush presidency will be almost totally wasted. We won't even get any judges confirmed.

[Dwilkers]

From Lurker's USA today link:

In an editorial page article in USA Today on Friday, Hastert said he and House Minority Leader Nancy Pelosi, D-Calif., have directed House lawyers "to develop reasonable protocols and procedures that will make it possible for the FBI to go into congressional offices to constitutionally execute a search warrant."

Hey I have an idea, how about this? Establish a house rule that if a member is under subpoena he must comply immediately or the house will de-certify his ass.

[boris]

CBS story about William Jefferson:

Top law enforcement officials at the Justice Department and the FBI indicated to their counterparts at the White House that they could not, and were unwilling to, return documents to the Louisiana REPUBLICAN which were seized as part of a bribery investigation.

Is Mary Mapes back or what? h/t Ace of Spades

[ATM]

When Congress issues a supeona, they don't go to the courts to get it approved. They expect that the executive branch will comply. And it should be noted that, Congressional supeonas are issued by politicians (and are political in nature) basically at the whim of Congress, where as the prosecutors who request supeonas are Civil Service or political appointees approved by Congress.

[maryrose]

WAPO report today says Jefferson tried to hide subpoened information from FBI while they were searching his house according to one FBI officer. Looks like a good reason to search his office too before he can destroy other evidence. Congressman explain the 90g's please!