House Leaders Are Incorrect
The New York Times reports that House Speaker Dennis Hastert and Minority Leader Nancy Pelosi have demanded the return of the files seized during the execution of a search warrant on Representative William Jefferson's office on Saturday night:
The constitutional clash pitting Congress against the executive branch escalated Wednesday as the Republican and Democratic leaders of the House demanded the immediate return of materials seized by federal agents when they searched the office of a House member who is under investigation in a corruption case.
The demand, by Speaker J. Dennis Hastert, Republican of Illinois, and Representative Nancy Pelosi of California, the Democratic leader, underscored the degree of the anger generated among members of both parties on Capitol Hill by the search on Saturday night at the office of Representative William J. Jefferson, Democrat of Louisiana, who has been accused of accepting bribes.
"The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years," Mr. Hastert and Ms. Pelosi said in a rare joint statement.
Mr. Jefferson made a similar demand in federal court. He called for federal agents to be prohibited from reviewing seized files and computer records.
Justice Department officials, who have said the search was proper and necessary, did not appear ready to return materials taken from the lawmaker's official House suite, setting the stage for a court battle to resolve competing claims of constitutional protection and criminal inquiry.
Ahem ... May I?
The separation of powers cannot extend into a criminal investigation. Were that true then no criminal charges could ever be brought against a member of Congress. The Justice Department, an arm of the executive branch, would be hog-tied and unable to truly hold anyone in congress accountable for crimes committed. Mr. Jefferson is involved in a probe into illegal activities; that being bribery. It is absurd to portray those in Congress of being above the law by citing "separation of powers." Likewise, this extends to the search of his office. He is granted no immunities under Article I, Section 6, which reads as follows:
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. 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.
They may not be questioned anywhere on the grounds of Congress, but it says nothing regarding a search warrant being executed. And at this point with what federal investigators found in his home, there is enough probable cause to show that his office records may hold more information. This is, after all, an ongoing investigation, and for law enforcement to be able to perform its job, they must have all relevant information. But their privilege is based solely on the charge. The last time I checked, bribery was a felony, which is listed as one of three crimes that removes the stated privilege. Furthermore, FindLaw.com has this to say about Section 6:
This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379
As for the speech and debate clause, the the DoJ's site has this:
The Federal offenses of bribery and gratuities apply to payments made in consideration for, or to thank or curry favor with, Members of Congress and their legislative staffs. However, where an official of the Legislative Branch is the intended recipient, the task of proving the "official act" element can present prosecutors with unique challenges rooted in the Speech and Debate Clause of the U.S..Constitution. U.S. Constit. Art I, sec 6, cl 1.
The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches. Gravel v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395 U.S. 486 (1969).
While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527. The Supreme Court has declared that "past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause," including speeches in committee as well as those on the Floor of the Chamber, the Senator or Representative's votes, and his or her explanations for them. A somewhat wider latitude has been allowed insofar as the admissibility of activities that took place occurred prior to a legislative act. United States v. Helstoski, 442 U.S. 477, 489 (1979). However, the parameters of what constitutes a "legislative act" are quite broad, and can severely impair the ability of prosecutors to prove bribery and gratuity cases where the recipient is an elected Member of the Legislative Branch.
When evidence embraced by this privilege is introduced--either in trial or in grand jury proceedings--the effect can be as troubling to the prosecution as introducing the fruits of an illegal search. See United States v. Durenburger, 1993 WL 738477 (D.Minn 1993); Helstoski, supra; compare Johnson.
In addition, both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.
The search requested was more than legal, and the Speech and Debate clause has no bearing on the investigation. Now could the search been handled a little better? Yes, it could have been, but there was a risk that any relevant material might have been destroyed, or moved elsewhere. Again, this is an ongoing investigation, and the risk was too high or so the Justice Department thought.
I appreciate the House leaders wanting to stick up for their privileges, but in this particular case, they are wrong. And if it is not scary enough that this is my opinion on the matter--backed up by a solid interpretation of the Constitution--the WaPo agrees with me.
The Bunny ;)
The New York Times reports that House Speaker Dennis Hastert and Minority Leader Nancy Pelosi have demanded the return of the files seized during the execution of a search warrant on Representative William Jefferson's office on Saturday night:
The constitutional clash pitting Congress against the executive branch escalated Wednesday as the Republican and Democratic leaders of the House demanded the immediate return of materials seized by federal agents when they searched the office of a House member who is under investigation in a corruption case.
The demand, by Speaker J. Dennis Hastert, Republican of Illinois, and Representative Nancy Pelosi of California, the Democratic leader, underscored the degree of the anger generated among members of both parties on Capitol Hill by the search on Saturday night at the office of Representative William J. Jefferson, Democrat of Louisiana, who has been accused of accepting bribes.
"The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years," Mr. Hastert and Ms. Pelosi said in a rare joint statement.
Mr. Jefferson made a similar demand in federal court. He called for federal agents to be prohibited from reviewing seized files and computer records.
Justice Department officials, who have said the search was proper and necessary, did not appear ready to return materials taken from the lawmaker's official House suite, setting the stage for a court battle to resolve competing claims of constitutional protection and criminal inquiry.
Ahem ... May I?
The separation of powers cannot extend into a criminal investigation. Were that true then no criminal charges could ever be brought against a member of Congress. The Justice Department, an arm of the executive branch, would be hog-tied and unable to truly hold anyone in congress accountable for crimes committed. Mr. Jefferson is involved in a probe into illegal activities; that being bribery. It is absurd to portray those in Congress of being above the law by citing "separation of powers." Likewise, this extends to the search of his office. He is granted no immunities under Article I, Section 6, which reads as follows:
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. 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.
They may not be questioned anywhere on the grounds of Congress, but it says nothing regarding a search warrant being executed. And at this point with what federal investigators found in his home, there is enough probable cause to show that his office records may hold more information. This is, after all, an ongoing investigation, and for law enforcement to be able to perform its job, they must have all relevant information. But their privilege is based solely on the charge. The last time I checked, bribery was a felony, which is listed as one of three crimes that removes the stated privilege. Furthermore, FindLaw.com has this to say about Section 6:
This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379
As for the speech and debate clause, the the DoJ's site has this:
The Federal offenses of bribery and gratuities apply to payments made in consideration for, or to thank or curry favor with, Members of Congress and their legislative staffs. However, where an official of the Legislative Branch is the intended recipient, the task of proving the "official act" element can present prosecutors with unique challenges rooted in the Speech and Debate Clause of the U.S..Constitution. U.S. Constit. Art I, sec 6, cl 1.
The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches. Gravel v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395 U.S. 486 (1969).
While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527. The Supreme Court has declared that "past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause," including speeches in committee as well as those on the Floor of the Chamber, the Senator or Representative's votes, and his or her explanations for them. A somewhat wider latitude has been allowed insofar as the admissibility of activities that took place occurred prior to a legislative act. United States v. Helstoski, 442 U.S. 477, 489 (1979). However, the parameters of what constitutes a "legislative act" are quite broad, and can severely impair the ability of prosecutors to prove bribery and gratuity cases where the recipient is an elected Member of the Legislative Branch.
When evidence embraced by this privilege is introduced--either in trial or in grand jury proceedings--the effect can be as troubling to the prosecution as introducing the fruits of an illegal search. See United States v. Durenburger, 1993 WL 738477 (D.Minn 1993); Helstoski, supra; compare Johnson.
In addition, both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.
The search requested was more than legal, and the Speech and Debate clause has no bearing on the investigation. Now could the search been handled a little better? Yes, it could have been, but there was a risk that any relevant material might have been destroyed, or moved elsewhere. Again, this is an ongoing investigation, and the risk was too high or so the Justice Department thought.
I appreciate the House leaders wanting to stick up for their privileges, but in this particular case, they are wrong. And if it is not scary enough that this is my opinion on the matter--backed up by a solid interpretation of the Constitution--the WaPo agrees with me.
The Bunny ;)
posted by Syd And Vaughn | 12:11 AM
1 Comments:
Excellent blog. There's nothing in the Constitution that prohibited this search. I expect the Speaker to know that but I'm not sure about Pelosi. Rawriter
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