EVERY TIME A CELL DOOR CLANGS, AN ANGEL GETS HIS WINGS

IN RE: SEARCH OF THE RAYBURN HOUSE OFFICE BUILDING ROOM NUMBER 2113 WASHINGTON, D.C. 20515, Case No. 06-0231 M-0, slip op. (7/10/06)

“All laws should be made to operate as much on the law makers as upon the people; . . . Whenever it is necessary to exempt any part of the government from sharing in these common burthens, that necessity ought not only to be palpable, but should on no account be exceeded.” 2 Founders’ Constitution 331 (Philip B. Kurland & Ralph Lerner eds., 1987) (James Madison, The Militia Bill, House of Representatives (Dec. 16, 1790)). Pending before the Court is Congressman William J. Jefferson’s Motion for Return of Property and Emergency Motion for Interim Relief, in which he contends that the execution of a search warrant on his congressional office was unlawful in violation of the Constitution’s Speech or Debate Clause, separation of powers principle, and Fourth Amendment. Having carefully considered the submissions of Congressman Jefferson, the Bipartisan Legal Advisory Group of the Unites States House of Representatives as amicus curiae, and the Government, the Court will deny the motion....

Congressman Jefferson also argues that the issuance and execution of the search warrant in this case violated the general principle of the separation of powers, stating that “[t]he delicate balance of our democratic system was disrupted when the court authorized the executive branch to search the Member’s office and peruse and remove Speech or Debate material.” Mem. 13. This argument too must fail. As the Supreme Court has recognized, “The check-and-balance mechanism, buttressed by unfettered debate in an open society with a free press, has not encouraged abuses of power or tolerated them long when they arose. This may be explained in part because the third branch has intervened with neutral authority.” Brewster, 408 U.S. at 523.

Indeed, this Court intervened here with the neutral authority of the third branch as a check on the power sought to be exerted by the Executive Branch when it authorized a particularized search warrant only upon a showing of probable cause. The statement by amicus that if the search here is upheld, in the future the Government need “only to persuade a federal judge” to obtain warrants to search other congressional offices, is a gross trivialization of the role of the judiciary. Amicus Brief 33. A federal judge is not a mere rubber stamp in the warrant process, but rather an independent and neutral official sworn to uphold and defend the Constitution.

If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Members of Congress to frustrate investigations into non-legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from prosecution. “Our speech or debate privilege was designed to preserve legislative independence, not supremacy.” Brewster, 408 U.S. at 508. The execution of the search warrant upon Congressman Jefferson’s congressional office did not violate the separation of powers principle....

The facts and questions of law presented here are indeed unprecedented. It is well-established, however, that a Member of Congress is generally bound to the operation of the criminal laws as are ordinary persons. The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” Brewster, 408 U.S. at 516. Members of Congress are not “exempt[] . . . from liability or process in criminal cases.” Gravel, 408 U.S. at 626.

The existing broad protections of the Speech or Debate Clause – absolute immunity from prosecution or suit for legislative acts and freedom from being “questioned” about those acts (including privilege from the testimonial act of producing documents in response to a subpoena) – satisfy the fundamental purpose of the Clause to protect the independence of the legislature. The Court declines to extend those protections further, holding that the Speech or Debate Clause does not shield Members of Congress from the execution of valid search warrants. Congressman Jefferson’s interpretation of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial precedent and will not be adopted here. See Williamson v. United States, 28 S. Ct. at 167 (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (quotation omitted). [Footnotes omitted]

Presumably all those who applauded the Hamdan decision for reining in the imperial presidency by interfering in the President's well-established authority in military and foreign affairs will also applaud this clearly correct slap-down of an unprecedented power grab by the Congress.

Posted by David Cohen at July 10, 2006 8:16 PM