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A few random thoughts on the Jefferson case

1) Why is it so hard for me to type "William Jefferson" without putting a "Clinton" at the end?

2) It is my understanding that the FBI has exclusive jurisdiction on all crimes committed on federal property. Since Jefferson apparently used his office for committing crimes, then they have the right to search it.

3) The FBI obtained a warrant before conducting the search. That means that an arm of the Executive Branch first sought approval from the Judiciary Branch. While not explicitly, could this not be considered implicitly a form of "checks and balances?"

4) If it is the position of Congress that it is exempt from such actions by the Executive Branch, I sincerely hope that the next time Congress wants to do ANYTHING to the Executive Branch, such as compel someone to testify, subpoena documents, or ANYTHING, I hope like hell the Bush administration tell's 'em to GFY. In fact, Cheney should deliver the message personally -- he's STILL getting mileage out of the time he told it to Pat Leahy. This kind of independence and immunity must work both ways.

5) Speaking of Vice President Cheney, this might be a good time to free up a large portion of his schedule and just have him camp out on Capitol Hill. The sole Constitutional duty of the Vice-President is to preside over the Senate, and his constant presence should remind Congress that the checks and balances system is there for a REASON.


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Comments (15)

The White House often tells... (Below threshold)
mantis:

The White House often tells Congress to GFY when they subpeona documents or try to get people to testify, and vice versa. In short, the independence does work both ways.

"3) The FBI obtained a warr... (Below threshold)

"3) The FBI obtained a warrant before conducting the search. That means that an arm of the Executive Branch first sought approval from the Judiciary Branch. While not explicitly, could this not be considered implicitly a form of "checks and balances?"

You left out the fact the FBI and the court issuing the warrant did all this in accordance with the laws written by the congress.

I think this could be considered an explicit form of "checks and balances."

I must agree that mantis ha... (Below threshold)

I must agree that mantis has an accurate statement about White House reactions in past, however history shows that ultimately the judicial branch mediated the outcome.

In this case the judicial branch approved a warrant before the search.

And despite the presentation of evidence (leaks?) thus far, what has been the official response of the HOR/Senate to this serious charge against WJ? Any calls for a Special Prosecutor? More hearings in front of TV cameras?

[sound of pin dropping]

And despite the presenta... (Below threshold)
mantis:

And despite the presentation of evidence (leaks?) thus far, what has been the official response of the HOR/Senate to this serious charge against WJ? Any calls for a Special Prosecutor? More hearings in front of TV cameras?

There have been calls for him to step down from Ways and Means and to resign outright. There is no need for a special prosecutor (he's not the president), and the DoJ is already on the case (with pretty good evidence already, it is reported). I'm not sure what you're looking for, tar and feathering?

We all know that, with King... (Below threshold)
Lee:

We all know that, with King George in office, the constitution, bill of rights, laws, rules, and procedures we've lived by for the last 232 years go out the window.

He has a dooty to fulfill, and he will do whatever it takes to make his dooty count!

You gotta love that chimp!

And more basically, Stephen... (Below threshold)
Wethal:

And more basically, Stephen, when Congress writes a law that is unconstitutional, the SC can strike it down. And Congress accepts that the SC has that authority, even though they may greatly dislike individual instances of it.

Lee, step away from the bon... (Below threshold)
John Irving:

Lee, step away from the bong. If you have a salient point, make it, please.

I made this comment before ... (Below threshold)
sissoed:

I made this comment before (I've forgotten whether I made this comment on Wizbang or somewhere else), but to me the issue is that police supervised by the Legislative branch -- the Capitol Police -- must be the ones who actually do the search. We shouldn't have executive branch officers enforcing the subpoena, because of separation-of-powers concerns. The judicially-approved subpoena should be served on the Capitol police. Non-armed executive branch officials, such as the lawyers who sought the subpoena, may go along as observers/advisors. The same rule should apply to subpoenas for searches of judges' chambers -- officers who report to the judicial branch should execute them. If and when this gets to the Supreme Court, the justices are going to be thinking about the separation-of-powers concerns of having FBI agents, with a subpoena approved by a political-activist trial-level judge, forcing their way into their own chambers. This issue is fundamental, it goes all the way back to English parliamentary powers vis-a-vis the executive, long before our Revolution, before the Constitution, and before there ever was a federal "police" force sey-up under that constitution capable of carrying-out such a search. Symbolically, in Great Britain, when the "Black Rod" approaches the House of Commons, the parliament slams the door in his face, and he has to bang on the door and get permission to enter -- he cannot just force his way in. That old ritual has real meaning. However, you make an interesting point about jurisdiction: if Congress has in fact passed a statute that gives the executive branch the power to send armed investigative officers to force their way into legislative offices, then the search was likely lawful (though still very troubling). However, I would support an amendment to any such statute, making clear that federal agents have no power to invade Congressional offices that are guarded by Congressional police, unless they are performing emergency police-power functions such as preventing a crime in progress. A subpoena to search a legislative office should be reviewed by the Speaker or the Majority Leader and executed by the Capitol police. If the Speaker or Majority leader refuse to allow the search, then the executive can choose whether to publicize the matter and make it become a political matter for the voters to take into consideration. Do you really want President Hillary's Attorney General to be able to get a subpoena approved by a Clinton-appointed judge and then send armed officers to search Republican offices in the Capitol? Don't forget Hillary approved the "File-gate" intrusion into security-clearance files of Republican appointees almost as soon as her husband was in office. I realize that this might give advance notice to the legislator, wh might then remove the files, but then the files are no longer on protected Legislative-branch property.

"I realize that this might ... (Below threshold)

"I realize that this might give advance notice to the legislator, who might then [remove] destroy the files, but then ...

The very fact that we are h... (Below threshold)

The very fact that we are having this discussion after a member of Congress has been bagged with $100k in cash (oops, $90k -- commission, no doubt) in his freakin freezer is prima facie evidence that our political system is in extremis.

To macklin who asserts that... (Below threshold)
sissoed:

To macklin who asserts that the procedure would allow the target to destroy the files, I note that as I understand the story, the government investigation here was well-known to the target and he had ample opportunity to destroy files. As I understand it, it was his long refusal to comply with a document demand that led to this search. So my procedure would not have increased the chances of destruction in the present case. But beyond that, even if the procedure leads to destruction of evidence in other cases, evidence that a surprise executive branch search would capture, the cost of losing such evidence in particular cases is acceptable when weighed against the greater importance of protecting the principle that legislative offices provided by the government to legislators, and guarded by police who report to the legislators, should not be subject to surprise forced intrusion by executive branch officials. Or would you agree that legislative branch police may barge into the White House if a judge says they have a valid basis for a search?

The problem with Congress i... (Below threshold)
Captain Ned:

The problem with Congress is that it fancies itself to be Parliament.

..."the greater importance ... (Below threshold)

..."the greater importance of protecting the principle that legislative offices provided by the government to legislators, and guarded by police who report to the legislators, should not be subject to surprise forced intrusion by executive branch officials..."

I would argue that government property is government property -- the LEGISLATURE's name is not found on the title to the land.

Separation of Powers has to do with the exercise of FUNCTIONS, not the sanctity of property. There is certainly a due degree of comity among the branches in terms of honoring turf; but I would argue that where the law enforcement function is necessary to insure the integrity of government operations/officials, its ability to execute its search and seizure functions represents a legitimate trumping of Congress' vague notion of proteeecting its members' "turf."

And yes, any law enforcement body with proper jurisdiction and a valid search warrant should be permitted into whatever building a judge authorizes in the warrant.

I have to disagree with ssi... (Below threshold)
Cousin Dave:

I have to disagree with ssisoed too, on two bases:

(1) The Constitutional protection for legislators is pretty narrowly tailored to performance of their official duties. It does not shield them from prosecution on other matters. (And I would argue this is particularly true when said prosecution is in regard to abuse of their powers as legislators.) There is nothing particularly sanctified about their Washington offices. After all, every member of Congress has offices in their home states where some of their official duties are performed. Should those be immune from search too? One can see how easy it would be for a corrupt Congressman to establish a whole network of "offices", all immune from search.

(2) The Capitol Police have a conflict of interest in prosecuting a case against a Congressman, since said Congressman is in their chain of command. It's the same problem the DOJ has in prosecuting White House-level executive branch officials, which is why special prosecutors exist. As we saw in the McKinney case, members of Congress can and will use their powers over the Capitol police to block those police from carrying out their duties. Any attempt by the Capitol police to prosecute a Congressman on a felony charge would almost certainly be quashed.

The whole thing about membe... (Below threshold)

The whole thing about members of Congress not being arrested in or on the way to a session or for anything said in debate goes back to when Charles I attempted to arrest five MPs in Parliment, precipitating the English Civil War. That was roughly as recent to the Founders' time as the Civil War is to ours.

There is specific exception for felony, which is what Jefferson is being investigated for, and protection against arrest, not seizure of evidence under the procedures set forth in the Fourth Amendment, anyway.

The reason this search and seizure is "unprecedented" is simply that longstanding tradition allows members of Congress to comply through the Speaker of the House or the President of the Senate, permitting subpoenaed evidence to be delivered without the MC being directly required to comply. Jefferson wouldn't comply even with the House tradition, and Hastert failed to force him to do so.

They have no complaint at all. The FBI waited eight months after issuing the subpoena, and got nothing from Jefferson OR the House. As a judge agreed, they had done everything they could reasonably be expected to do to conform with the traditions; it was the House which overtly violated the custom.




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