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Raiding a congressional office: was the FBI wrong?
Posted by: McQ on Wednesday, May 24, 2006

That seems to be the thrust of what is coming out about the FBI raid on Congressman William Jefferson's office. It got Denny Hastert off his duff to complain directly to President Bush and even the House Majority Leader looked askance at the event:
Representative John A. Boehner of Ohio, the House majority leader, predicted that the separation-of-powers conflict would go to the Supreme Court. "I have to believe at the end of the day it is going to end up across the street," Mr. Boehner told reporters gathered in his conference room, which looks out on the Capitol plaza and the court building.


"I clearly have serious concerns about what happened," Mr. Boehner said, "and whether the people at the Justice Department have looked at the Constitution."
Well it may indeed end up there. But in the meantime, here's the problem:
He [Attorney General Alberto R. Gonzales] and other officials suggested that the search had been made necessary by a lack of response to an earlier subpoena. "We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists," Mr. Gonzales said.

Members of Congress are mindful that much of the public is not familiar with the speech and debate clause, which, among other things, requires that lawmakers be "privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." Many people may wonder why a Congressional office cannot be searched in a criminal case and what members of Congress are complaining about.
Questions: Who was "arrested" here, given that it was a search of an office? And where in the Constitution does it give immunity to lawmakers from responding to a legal subpoena? Lastly, while it exempts Congressmen from arrest while Congress is in session, does that exemption also extend to searchs of their office if they are a suspect in a criminal case and there is probable cause to search?

While the article makes the case that this again points to the administration's "pattern of asserting broad executive authority, sometimes at the expense of the legislative and judicial branches", one has to wonder how well this will sell to middle America as a reason to exempt an alleged criminal from search. Is it really a Constitutional issue (Jefferson wasn't arrested) or is it just an unwarranted assumption by Congress that this isn't kosher simply because it has never happened before?

UPDATE: On a related issue, Minority Leader Nancy Pelosi asked William Jefferson to resign his position on the Ways and Means Committe. Jefferson has declined the opportunity:
I have received your letter of this date requesting my immediate resignation from the Ways and Means Committee. With respect, I decline to do so.

Through my committee position and since this federal investigation became public, I have secured over $20 billion in tax credits and federal funds for my district after Hurricane Katrina. I authored the GO ZONE Act, the Katrina Public Finance Act, and the Katrina Tax Relief Act, along with my colleague Jim McCrery, which all resulted in massive tax relief for families, seniors, government agencies and businesses in the hurricane-affected region. All of these matters fall within the jurisdiction of the Ways and Means Committee. Additionally, my committee covers trade, which is important the Port of New Orleans. My work on the committee has been important to our port´s recovery after the storm.

None of the matters reported to be under scrutiny involve issues under jurisdiction of the Ways and Means committee. Therefore, such a request would be even more perplexing and unreasonable. If I agreed, it would unfairly punish the people of the 2nd district and I will not stand for that.

Further, such a request would be discriminatory, in as much as no other Member currently under federal investigation has been asked to step down from a substantive, legislative committee assignment. It would also be unprecedented, in as much as I have served with Members who have been indicted, tried and won their cases, and who were never asked to step aside from their committee assignments during those processes. Therefore, I will not give up a committee assignment that is so vital to New Orleans at this crucial time for any uncertain political strategy.
Shorter version: Hey, I'm innocent until proven guilty, I've served with other criminals, er, indicted members and besides, there's just too much money at stake to walk away now. Or words to that effect.
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Previous Comments to this Post 

One commenter on FoxNews last night said to the effect that, should this be deemed illegal, there’s nothing to stop a Congressman or aide from dealing coke out of their offices.
Written By: Keith, Indy
URL: http://
Imperial arrogance. Nothing less.
Written By: Jon Henke
It simply amazes me that Congress believes that they are exempt from a search warrant implemented by the FBI after establishing to a judge’s satisfaction that probable cause exists to support the warrant. (This hardly seems like the Executive Branch ganging up on the Legislative Branch....the Judiciary Branch had a say!) Both Republicans and Democrats in Congress have (unfortunately) shown themselves entirely capable of corrupt activities....and both have also shown that they are not capable of policing their own members. With all that has surfaced in recent news cycles regarding corruption, one would think that those in Congress would not dare to make the argument that Congress should somehow be exempt from such law enforcement activities. And yet they did so....and then they wonder why they are held in such disrespect by the voters?????
Written By: RAZ
URL: http://
Lastly, while it exempts Congressmen from arrest while Congress is in session, does that exemption also extend to searchs of their office if they are a suspect in a criminal case and there is probable cause to search?
Actually, according to the Supreme Court such immunity is possible under the Speech and Debate Clause:
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.
[h/t: Commenter "Angus" at The Volokh Conspiracy]

However, that doesn’t necessarily mean that it applies in this case. Buried in the NYT article (of course), and conspicuously uncommented upon elsewhere, is this tidbit:
The search warrant affidavit spells out special procedures put in place to ensure the search did not infringe on privileged material. The procedures include use of a ’’filter team’’ of prosecutors and FBI agents unconnected to the investigation. They would review any seized items or documents and determine whether the documents are privileged and therefore immune from the search warrant.
This "filter team" is apprently designed to address the concerns regarding the Speech and Debate Clause. I won’t opine on whether or not it accomplishes that endeavor.

There is also a question as to why the normal procedures for carrying such a search warrant were not followed:
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.
[emphasis added]

There may have been exigent circumstances here that obviate the need for procedural formalities. But it sure does seem like it would have been easier to just follow the precedent.

Some have speculated that the AG’s action was prompted by an Administration desire to balance the front-page coverage of Republican scandals with a Democratic one. That does not sound entirely implausible to me.
Written By: MichaelW
URL: http://
I’ve long believed Denny Hastert to be a useless placeholder of a speaker. I think he’s the cause of much of the out-of-touch nature of GOP politicking in the last few years.

This incident absolutely cements that opinion. He is virtually silent on the major issues of the day, but pops up as soon as there’s any whiff of accountability for Congressmen for illegal acts. That shows where his mind is at.
Written By: Billy Hollis
URL: http://
there’s nothing to stop a Congressman or aide from dealing coke out of their offices.
Well, if the Jefferson case is thrown out then I bet a lot of people will have thought of that.

So where do our friends on the left see this?
Written By: capt joe
URL: http://
I would sooner see them dealing coke out of their offices than meeting with Jack Abramoff in them.

Anytime congress shows any backbone and objects to ceding any more power to the executive branch I support that. Its too bad the FBI has to literally kick down the doors of congress before they start to complain.

Written By: cindyb
URL: http://
I’m certainly no lawyer, but it seem to me that the arrest exemption does not extend to searches of offices. However, it is an arguable point of the law.

But on the politics of this, this is a Republican blunder. Here we have a Democrat with a colorful scandal - money wrapped in tin foil hidden in the fridge - and the guilt seems obvious. Republicans should stay out of it. It’s the old maxim that if your enemies are self-destructing, don’t interfere.

Instead Republicans are coming to the Democrat’s defense on a debatable legal privilege that I think most citizens would consider a congressional abuse.
Written By: Freddie
URL: http://
Cindy, you certainly don’t disappoint.

That’s the most partisan "beam in the eye" complaing about splinter in another thing I heard in a wild.

So you think corruption is only a problem when Repubs do it? You do know that Dems were caught in the Abramoff scandal.

Are you sure you aren’t some Eliza program somewhere with a DailyKos programming module? That was a rhetorical question.
Written By: capt joe
URL: http://
I do so hate to disappoint a man in uniform, CaptainJoe.

I never said that corruption was something that just republicans were involved in. You need new reading glasses. BTW: Democrats received money from Greenberg Traurig, not Abramoff. No questions of illegality have been raised regarding those contributions but it does speak to the pseudo corruption of congress on the whole.

Written By: cindyb
URL: http://
I would sooner see them dealing coke out of their offices than meeting with Jack Abramoff in them.
Goodness! Damn near spit out my drink when I read that CindyB. You are amazing! Your response translated = ’I would rather see elected oficials selling addicting and compromising illegal (at this time) cocaine from their official offices than have them meet with Jack Abramoff’

Nice -
Written By: meagain
URL: http://
I find it difficult to believe that the writers of the constitution thought the halls of congress should be a sanctuary for criminal activity and immune to any enforcement of the law. With the emphasis on checks and balances in the constitution, it seems unlikely to me that there would be no check on criminal activity.
Written By: timactual
URL: http://
I see your point. How could people who write laws possibly write laws that would exclude people who write laws.
Written By: cindyb
URL: http://
So, the lawmakers are above the law?

I thought that was your argument againt Bush.

Nice to see you spell out your hypocrisy so clearly. By the way, how are those 24 hours coming along?

Oh, and Abramoff was an equal opportunity grifter. People on both sides of the isle were happy chomping away on his offerings. But don’t let me confuse you with the facts.
Written By: capt joe
URL: http://
I’m torn. I’m all for busting Jefferson, but I can see a lot of good reasons not to empower the executive branch to rummage through the legislative branch’s offices.

When does the legislative branch get to send FBI agents into the Pentagon to root out the other end of some of the recent corruption scandals? How about the White House? The police are all directly under the president, which makes it very hard for him to be investigated. Even when it works, the gears grind.

There’s problems with congressional immunity, and there’s problems with lack of immunity.

I tell you what, give Congress it’s own FBI equivalent, and then end the hallowed ground on all sides.

Written By: glasnost
URL: http://

May I point out that the FBI raided Jefferson’s office after obtaining a warrant from a Federal Judge? A Federal Judge is NOT part of the Executive Branch - he is part of the Judicial Branch.

So if you have any beef in this case, you can’t have it with just the Executive Branch (because you hate the President), you also have to do some screaming and shouting at the Judicial Branch.

In other words, two branches got together and effected an act on the one left out. This is a feature, not a bug, of the separation of powers.

PS: cindyb ...

Receiving a personal campaign contribution from Jack Abramoff is every bit as legal as receiving a contribution from Greenberg Traurig (as directed by Jack Abramoff).

It’s receiving a campaign contribution as part of a quid pro quo that’s the problem.
Written By: Martin A. Knight
URL: http://
Martin, it’s all very well that the FBI got a warrant first, for once (a welcome change of approach, I might add), but that doesn’t end the issue.

Two branches working against the third is all very well as well. my point was: can you imagine this scenario reversed? Not really, because the FBI works for the President. Obviously, it’s not impossible for the FBI to investigate the executive branch, but it’s a rather dysfunctional conflict of interest when it tries.

It’s a permanent weakness of our system, in my opinion, that all of our country’s investigative and enforcement functions are under the executive branch.

On the other hand, you could argue that the Republicans got around this roadblock just fine with special prosecutors. But this is the equivalent of a workaround, not a clean fix.

PS: this has very little to do with my feelings about any particular president.
Written By: glasnost
URL: http://
Fair enough ...

    On the other hand, you could argue that the Republicans got around this roadblock just fine with special prosecutors.

I see your knowledge of history only goes back to the 90s. I would have thought Nixon was also faced with a special prosecutor ...
Written By: Martin A. Knight
URL: http://

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