May 25, 2006


Breach Was More of the Spirit, Not the Letter, of the Constitution (Charles Lane, May 25, 2006, Washington Post)

The FBI raid on Rep. William Jefferson's congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say.

The issue could turn on whether a court finds that the items seized from Jefferson's office were related to such protected legislative activities as writing, researching and voting on bills. Other things could be fair game for the prosecution, analysts said. [...]

Both the search warrant for Jefferson's office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers -- and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.

Just because Congress and the Court have routinely overstepped the bounds of separation doesn't mean the Executive should start.

Posted by Orrin Judd at May 25, 2006 8:21 AM

Ah, so it was the violation of a penumbra.

Posted by: David Cohen at May 25, 2006 8:29 AM

Jefferson apparently did try to use his House office as something equivalent to a diplomatic mission on foreign soil in refusing to allow any voluntary look inside prior to the FBI search warrant. The extra effort by the feds seems a little unnecessary, based on them having already found the $90,000 in the congressman's New Orleans freezer, but down the line you could see a situation where a smarter person would use the seperation of power laws to make his or her House office space in something akin to the old Soviet Embassy in northwest Washington (minus all the high-tech listening devices pointed at the White House, of course).

Posted by: John at May 25, 2006 8:35 AM

Of the intent.

Posted by: oj at May 25, 2006 8:37 AM

Article 1 section 6 gives an explicit privilege to congress regarding Speech and Debate.

Please direct me to comparable executive privilege in Article 2 since I can't seem to find it.

Posted by: h-man at May 25, 2006 8:43 AM

The executive power shall be vested in a President of the United States of America. [...]

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Posted by: oj at May 25, 2006 8:51 AM

So, Teddy could whisper sweet legislative nothings into the ear of a 16 year-old girl (on his office couch), and not be arrested or even questioned?

The Dems will have real problems if Jefferson hangs tough until he is convicted (which probably won't be until 2007, if then).

But Hastert and Boehner have real problems now, because their defense of 'tradition' is not going to fly. Especially Hastert, because the Ethics Committee has been such a glue pit for the past several years. Obviously, Mollohan had something to with that (as did the politics over DeLay), but a functioning Ethics Committee could have censured or even recommended expulsion for Jefferson and some of the other offenders. The intertia with the Ethics Committee is not the administration's fault.

Posted by: jim hamlen at May 25, 2006 8:57 AM

You can always make a political persecution look like a criminal prosecution.

Posted by: oj at May 25, 2006 9:08 AM

Evil President concocts a charge of bribery against Senator Feingold and executes a Judicial warrant by sending his Jack Booted henchmen to peek at the records in the Senator's offices to obtain the names of the whistleblowers and dissidents in his administration.
Evil President concocts a charge of bribery against Senator Feingold and is not granted a warrant, but instead the court requests via subpoena to Congress that they turn over those records relating to a bribery charges. Congress views those records and turns over only those records that relate to the bribery charges.
If the bribery charge is false, which senario represents the most just solution. If the charge is true which senario represents the most just solution.
Remember a majority vote by congress is all that is needed to release the appropriate records to the court, thus recalcitrant House or Senate Leadership alone can not block access.

Try constitutional privilege instead. Jefferson has not been indicted yet, so it would be inappropriate for the ethics committee to act in my opinion. Right now there is merely an investigation and therefore if you fault the ethics committee, why are you not also charging the Administration for delay.

Thank you for the emphasis to my original point, any Executive Privilege to keep information from Congress is judicially created.

Posted by: h-man at May 25, 2006 9:28 AM


No. The Executive power is explicit. The judiciary has no capacity to speak to it nor Congress to infringe it.

Posted by: oj at May 25, 2006 9:32 AM

"Executive Power"

Yes, but that Power apparently doesn't include the right to keep secrets from Congress unless such privilege has been created by the Judiciary or Congress. The only power the Executive has is to enforce the laws passed by Congress. You seem to want to say it don't need no stinking laws.

Posted by: h-man at May 25, 2006 9:41 AM

Congress can't make laws that limit the power granted the Executive in the Constitution.

Posted by: oj at May 25, 2006 9:46 AM

Correct and that Power doesn't include the right to search congressional records that would fall under Article 1 section 6's "speech and debate" clause. Which is what is at issue in the Jefferson case.

Furthermore, in exercising that power the Executive has no "explicit" right in the constitution to keep any of it's records secret from Congress except to the extent that Congress and the Judiciary say it can

Posted by: h-man at May 25, 2006 9:52 AM


Wrong. It has no obligation to share anything related to the exercise of executive power with anyone. The Executive is a separate branch of government.

Posted by: oj at May 25, 2006 9:56 AM

It sounds, from reading comments here and on other blogs, that some of us think that the three co-equal branches of our government are in a ongoing power struggle and that if two of the branches collude, they can trump the third branch even though he Constitution makes no provision for this and in fact spells out the duties and responsibilities of each branch making no provision for altering these assigned powers.

Posted by: erp at May 25, 2006 10:23 AM

I have to say, OJ is being even more inchoate than usual on this. I cannot figure out what he is saying about this issue, whether it's good, bad, unconstitutional, or what.

It does seem to be one of those cases where the politics are clear: standing up for the right of Congressmen to take bribes is a 10/90 issue and, as OJ says, one shouldn't value purity over power. Unless, as OJ says, it's wrong. Or something. After all, it's OK to throw out the Constitution for political purposes (CFR, McCain, and the only type of speech (according to OJ) that is protected by the Constitution). So surely this is acceptable in OJ's view as well?

P.S. Someone needs to ask McCain about this and his quest for "clean government".

Posted by: Annoying Old Guy at May 25, 2006 10:31 AM


"no obligation to share"

Then that would go double for Congress. Right?

Following your reasoning then could not Congress take the stance that not only does the Speech and Debate clause provide an evidentiary privilege, like the attorney-client privilege, but a complete immunity from civil suit and prosecution with respect to legislative acts, which might include monetary payments to Congressman to grease the legislative machinery. After all there is no mention of the Executive being allowed to keep information from Congress or the Courts, but there is such indication regarding Congress.

Posted by: h-man at May 25, 2006 10:32 AM


Yes. Separation doesn't just favor Congress.

Posted by: oj at May 25, 2006 10:36 AM


CFR is unconstitutional.

Posted by: oj at May 25, 2006 10:37 AM

If the House really wants to stand on this principle and keep the executive branch's law enforcement officers out of their buildings, they're going to have to put some more teeth into the Capital Police force as far as being able to carry out additional duties, such as executing search warrants, on the grounds and in the House and Senate office buildings. As was noted at the time of the Cynthia McKinney slapping incident, the police force is wary of doing anything to a sitting congressperson, because those people control both the force's pursestrings and the employment of its members.

Posted by: John at May 25, 2006 10:51 AM

We need term limits. It wouldn't solve all of the problems, but it would be a start in the right direction.

Posted by: AllenS at May 25, 2006 10:55 AM

OJ -

Today it is constitutional. Tomorrow, who knows?

Judge Thomas Hogan signed the warrant. He's the Chief Judge on the D.C. Circuit. What would Hastert and Boehner say if John Roberts (or any other Justice) had signed it?


The Ethics Committee 'acted' against Tom DeLay (in some fashion) more than once, long before he was indicted by Ronnie Earle. The Committee can do what it pleases. For the past several years, it has pleased to do nothing (except in cases like DeLay, where other members have filed grievances). That is Hastert's bailiwick, and he can't pretend otherwise. Even Jim Traficant wasn't dealt with until after his conviction.

Posted by: ratbert at May 25, 2006 10:59 AM

Mr. Judd;

Yes, CFR is un-Constitutional, but you were in favor of President Bush signing it. Therefore, being un-Constitutional is not a valid objection from you against this raid. So, since it's likely to be popular, what is there that you object to? Or do you object? I still have no firm idea what stance you have on the issue, just a vague sense that you don't approve.

Posted by: Annoying Old Guy at May 25, 2006 11:34 AM

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.

Jefferson is accused of a felony, so he is not privileged from arrest, and that privilege only applies (if it applies at all, the court cases say it doesn't) when in attendance at or going to or returning from Congress. In any event, he hasn't been arrested.

Nor has he been questioned for any speech or debate, so that doesn't apply. Moreover, the point of the speech and debate clauses is to protect legislators from charges of slander or seditious libel for statements made in debate.

The speech and debate clause does not purport to protect legislators from questioning on their votes or other official actions, and so it doesn't give constitutional protection to bribery. It doesn't even mention their papers, so legislators have no more right to protection from a search than do regular citizens. Here, the Fourth Amendment was satisfied by the (check and balance) of getting a member of the third branch to sign off on the search.

OJ: The constitution is dead, not living. It doesn't have a spirit. Otherwise, the only difference between you and Justice Blackmun is one of opinion.

h: One of the many things you're missing here is that the President is the executive branch in a way that Congressman Jefferson is not Congress. The president only has a privilege for producing certain documents that relate to his official duties. Remember that President Nixon was forced to give up records relating to Watergate.

Finally, your theoretical abuse scenario fails on a couple of points. First, judicial oversight of search warrants. Second, Congress has the power to impeach the President.

Posted by: David Cohen at May 25, 2006 11:47 AM

I don't understand what the "Speech and Debate" clause has to do with this case, towit Article 1, 6, 1:
"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."
Since Rep. Jefferson has not been arrested, this clause does not seem material. This was simply the execution of a proper search warrant issued by a judge after finding probable cause (video taped taking a $100,000 bribe and finding $90,000 in his home freezer under another search warrant). I see nothing in the Constitution making a Congress critter's offices immune from legal searches, and all the legal blogs seem to agree.

Posted by: jd watson [TypeKey Profile Page] at May 25, 2006 12:08 PM


Exactly. The only difference between any two people is opinion.

Posted by: oj at May 25, 2006 1:01 PM


No. I said he should be impeached for signing it. Every congressman who voted for it should be impeached. And every judge who upheld it should be impeached. They all violated their oaths of office.

But I'm not a libertarian so I live in the real world, not my own head. None of that's going to happen. Instead the President will appoint replacements for Stevens and Souter who will just reverse the ruling upholding limits on political speech.

Posted by: oj at May 25, 2006 1:04 PM

Even if there is a congressional privilege (a very big if), it is trumped by a criminal investigation.

In US v. Nixon, the SC ruled 9-0 that while there was an executive privilege against turning certain documents over to Congress, the President still had to comply with a subpoena since it was required by "the fundamental demands of due process of law in the fair administration of justice."

I will note that a warrant signed by a judge is a more formal thing than a mere prosecutorial subpoena. You have to convince a judge to issue it. And Hogan isn't some hack state trial judge. He is a senior and well respected federal judge.

Posted by: Bob at May 25, 2006 2:16 PM

JD and David

The Speech and Debate clause relates to comunication between members of Congress as they legislate. The FBI rummaged thru Congressional offices and then filtered out those documents etc that did not pertain to the Bribery Case.

(1)The Argument that Hastert etc is making is that the agents of the Executive Branch should not be doing the filtering but instead Agents of Congress, because otherwise the Executive Branch is gaining access to privileged documents. Similiar to a warrant to search a lawyers office and gaining access to privileged attorney-client communication, except a stronger privilege since it is mentioned in the constitution

(2)By what right should the Judiciary be issuing warrants to enter Congressional Offices anyway. The case is against Jefferson and not Congress. Therefore the court, if it felt information or documents were needed, should have subpoened Congress for specific information and allowed Congress to do the initial filtering out of privileged material. (there was no objection to the search of Jefferson's home and office in New Orleans)

(3) My abuse senario is valid. You're only asserting without any basis that the Executive Branch can view privileged communications as a by-product of a felony case. (you assume also that the Judiciary stands above Congress in making the determination)

Posted by: h-man at May 25, 2006 2:40 PM

h: The first step in getting out of a hole is to stop digging.

Why should a legislator get more protection against a law enforcement search than I do? The constitution certainly doesn't say he should.

"Speech" and "debate". Not ambiguous terms. In any event, he's not being questioned on speech or debate, however defined, because, as you admit, the FBI is winnowing those papers out.

I'm not saying the the judiciary and executive branches take precedence over Congress. I'm saying the Congress made the law making bribery a crime and the Executive is enforcing it. The judiciary is fulfilling it's constitutional duty to pass on warrants. If Congress doesn't like it, congress can change the law.

What privileged communication? No one has asserted a privilege. If Jefferson had complied with the subpoena, he would have had the chance to identify each document withheld and assert a privilege against producing it.

The Constitution says what it means and means what it says. It doesn't say a word about this.

Posted by: David Cohen at May 25, 2006 2:50 PM

Ya know, Bush is not a big fan of things Washingtonian. And here we've got this major DOJ/FBI offensive against political corruption. It occurred to me last evening that W just might be "pulling a Samson" (or a Jesus-and-the-money-changers) in his final three years at the center of Interstate 495. I don't really believe that, but I don't dismiss it either. It might even be a good idea ... if the WOT were under control.

Posted by: ghostcat at May 25, 2006 2:53 PM

The WOT's over.

Posted by: oj at May 25, 2006 2:58 PM

Why should an Attorney receive greater protection in searches than a peon like me? Well you don't have to answer that since it might be used against you later.. but the answer to your question is that the Supreme Law of the Land says that Congress is better than you, they get to make the laws and you get to obey them.

Below is merely a paste from Eugene Volokh, he's not

(1)The Speech and Debate Clause covers not just public documents that are part of the legislative process, but nonpublic ones as well, such as confidential bill drafts, memos about legislation from the staffer to the Congressman. Courts case have said that.

(2)The Speech and Debate Clause not only bars the other branches from punishing Congressmen based on their statements in the legislative process, but also creates a sort of evidentiary privilege, like the lawyer-client privilege, the executive privilege, and so on. That protects confidential documents that are part of the legislative process from being uncovered. It seems that the Department of Justice agrees with this.

(3) To enforce this privilege, any search must keep the Executive Branch from learning the contents of the documents. Before the documents are turned over to the prosecutors who are working on this case, the privileged documents must be screened out. This is similar, I believe, to what's done with searches of lawyers' offices, where someone who accompanies the searchers screens out the documents that appear to be covered by lawyer-client privilege. Again, the DoJ seems to agree with this; they seem to have provided screeners who are supposed to be independent of the prosecutors.

(4) Now, the main argument against this particular search: Any such screener should have been a Legislative Branch official, not an Executive Branch official or someone controlled by the Executive Branch. That is not the rule for ordinary searches of lawyers' offices; as I understand it, the screener there is chosen by the prosecutors, though often not a prosecutor's employee himself. But perhaps it should be the rule for the search of a Congressman's (or a federal judge's) office, since there is a possible set of relatively trustworthy officials who can protect the interests of their Branch, but who will not be controlled by the particular alleged wrongdoer whose premises are being searched.

Posted by: h-man at May 25, 2006 3:17 PM

oops I was going to say that he isn't the final word on the issue nor does he neccessarily think these arguments will prevail.

Posted by: h-man at May 25, 2006 3:20 PM

Regarding mixing up Jefferson with Congress. As far as I know there has been no dispute from Congress regarding the searching of Jefferson's home in New Orleans nor any place else that he hangs his hat, except Congressional Offices in DC.

Posted by: h-man at May 25, 2006 3:26 PM

Attorneys don't have any more protection than peons like you. The Attorney-Client privilege belongs to and protects peons like you. In any event, if congress wants to establish a legislative privilege it can. It hasn't.

With all due respect to Prof. Volokh, and the courts, they're smoking dope if they say what you say they say. First, let's note that Justice used screeners two steps removed from the agents on the case to collect the documents from the office, and then went through another round of screening before turning documents over to the investigating officers. I have no problem with Justice choosing to tip-toe around congress.

Second, the speech and debate clause protects statements made in, dar, speeches and debates. That is, it protects legislators from being prosecuted, convicted or imprisoned based on things they say on the floor of the legislature. Even if I were willing to agree that that should, out of an excess of caution, be extended to cover written statements made outside of the legislature, I don't see how it gives the legislature any right to keep things private. After all, the essential element of a speech or debate is that it is heard by other people.

Third, for agents of the legislature to execute a search warrant would be to intrude on the executive's function. After all, when the legislature want to enforce its subpoenas, it refers the matter to the justice department. It doesn't send legislative cops out to drag people in front of legislative courts and send them to legislative jails.

Fourth, if, as you suggest, this is only an argument about real estate, than it is even more ridiculous than I thought.

Posted by: David Cohen at May 25, 2006 3:58 PM

And I see, by clicking over to Volokh Conspiracy, that that's not Prof. Volokh's view, but rather his best effort at presenting an argument that is colorable, but with which he doesn't agree. As he says, "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."

Posted by: David Cohen at May 25, 2006 4:02 PM

Good manners matter too.

Posted by: oj at May 25, 2006 4:08 PM

You say Congress must pass a law to protect it's communication as privileged. Did Congress pass such a law to create Executive privilege? If not, why not since it is self evident from reading the constitution. (did I suggest that Congress could send agents to search Executive offices? If I did then it was merely to constrast it with the Executive Branch's assumption of that authority)

I wasn't suggesting that it was merely about real estate. I was trying to clarify the distinction between Rep. Jefferson and the constitutionally sanctioned institution of Congress. Apparently I didn't do a good enough job. So I will simply say that the Executive branch cannot gain access to priviliged communication that is part of Congress's legislative functions either directly or indirectly by legitimate lawsuit against one of it's members.

I specifically said that Prof Volokh did not neccessarily agree with the arguments, or that they would prevail. I was hoping his remarks would present the issue more eloquently than I was able.

Special procedures in the execution of warrants are used when the attorney is the suspect. ( for instance from this googled link )

Posted by: h-man at May 25, 2006 5:13 PM

oops, should read "it isn't self evident"

Posted by: h-man at May 25, 2006 5:15 PM

Right. Special procedures are used to protect the client, not the attorney. Similarly, executive branch officials who consult with executive branch lawyers don't have any privilege, because the privilege belongs to the government as a whole. To extend the metaphor, in this case, William Jefferson has no privilege. The privilege exists so the good of the people and belongs to the people.

I have zero sympathy for either Jefferson or Congress. If Congress wants to have a privilege, they can enact one. If they don't want to be investigated for bribery, they can arrange it so that bribery isn't a crime.

If we look at what Volokh is actually saying, he's saying that there is no constitutional issue here. That's because there is no constitutional issue. If this is merely a quibble about procedure than Congress should shut up about the constitution and separation of powers and argue about procedure. Of course, they'd look pretty dumb, as they are the boss of procedure.

You say that there has been no dispute from Congress regarding the searching of Jefferson's home in New Orleans nor any place else that he hangs his hat, except Congressional Offices in DC., but obviously super-secret documents containing privileged congressional speeches and debates could be located anywhere, and all the same procedural objections would apply. Only making the objection when it comes to searching a congressional office is to elevate real estate over substance.

Posted by: David Cohen at May 25, 2006 5:39 PM

executive branch officials who consult with executive branch lawyers don't have any privilege, because the privilege belongs to the government as a whole"

I agree and I think the same elements reside in the legislative branch. Hastert, as speaker is arguing for the proposition that Congressional records, documents that are part of the legislative function should not be subject to warrants incidental to a criminal investigation, but to the best of my knowledge he hasn't argued that the Executive Branch cannot seek evidence of bribery against Jefferson himself.

Again I was offering the fact that there was no objection from Congress when Jefferson's home was searched to merely show that, it was not Jefferson or his actions that were at issue. Only the privilege of Congress to engage in "speech and debate" free of intrusion by the Executive Branch.

You make light of the fact that the materials sought could have been "winnowed" by the Sgt of Arms of the House instead of by agents of the Executive Branch. Why exactly, it's always been done that way before.

Related to that topic, from that same Volokh thread it surfaces that the judge ordered the capitol police to "open" the premises immediately. How is it that a federal judge can give orders to capitol police when they are clearly part of a separate branch of government.

So to sum up you still didn't answer me as to why congress must enact a law granting itself a general privilege to protect it's deliberations, while it can be implied that the Executive Branch has a general Executive Privilege protecting its perogative in order to conduct it's functions.

Posted by: h-man at May 25, 2006 7:43 PM