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Republicans Insist Congressional Offices off Limits to Searches

Updated

House Speaker Dennis Hastert and House Leader John Boehner displayed a sickening amount of arrogance when they said the search of Rep. Jefferson's office was unconstitutional and that the documents retrieved at Rep. Jefferson's office should be returned.

What is the color of the sky in their world? The FBI got the appropriate warrant signed by a judge. If this action were unconstitutional wouldn't the judge have refused to sign the warrant for that reason?

Besides, as Byron York points out, the FBI officials tried several times to get the information they needed outside of getting a search warrant, but they were refused every time:

First, it should be said that prosecutors seem to have Jefferson dead to rights. They have -- and have had since late last summer -- more than enough evidence to justify a search of his office. In the last months, they have apparently tried other, more standard, means to try to get Jefferson to comply with requests to turn over the evidence, to no avail. There is even, in the 95-page search warrant request, a section headlined GOVERNMENT EFFORTS TO EXHAUST ALL LESSER INTRUSIVE APPROACHES TO OBTAINING RELEVANT DOCUMENTS AND RECORDS LOCATED IN THE WASHINGTON, D.C. CONGRESSIONAL OFFICE OF WILLIAM J. JEFFERSON. It is followed by several redacted paragraphs in which prosecutors apparently describe their attempts to get Jefferson to turn over information.

What did Dennis Hastert and John Boehner expect the FBI to do? Accept Rep. Jefferson's refusal to hand over the information it needed and just ignore the entire situation?

Now, If we took Hastert's and Boehner's statements to their most logical conclusion, any member of congress could blatantly commit any crime in his or her office and he or she would be immune from a search. Daffydd at Big Lizards argues this point as well:

They are saying that if Marion Barry were elected to Congress, he could sit there in his congressional office, in full view of God and Man, openly smoking crack and shooting up heroin... and the FBI, the DEA, and the Capitol Police could only stand helplessly watching. So long as he kept his stash in the office, he needn't even hide it -- because Congress has a private law that says "what happens under the Dome stays under the Dome."

Have they completely forgotten what is being investigated here? Rep. Jefferson was caught on video accepting a $100,000 bribe and $90,000 was found in his freezer*. Where's the outrage about that?

Update: Rep. Louie Gohmert (R-TX) was on John Gibson's Big Show on Fox News Channel trying to explain the ridiculous argument that the FBI raid on Rep. William Jefferson's office. He said it was the first time in 219 years that a congressional office was raided. So what? Just because it hasn't happened before doesn't mean it shouldn't or can't happen. He also referenced the speech and debate clause of the Consititution which says this:

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.

So where does it say in this clause that congressional offices can not be searched? As Judge Napolitano just said, this clause was put into the Constitution to prevent a president from preventing a vote that he doesn't like from happening. Its intent is not to protect a member of Congress from a criminal investigation.

Rep. Gohmernt also said that there were priveledged documents that were at risk and that the judge should have done an in camera inspection. Lame, lame, lame.

*Correction. I originally wrote that the money was found in his office when it was actually found in his freezer. Sorry about that.


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Comments (40)

These guys think they're ab... (Below threshold)

These guys think they're above the law, plain and simple.

This will end up hurting in... (Below threshold)
Mrs. Davis:

This will end up hurting in November. A real base demotivator. In combination with earmarking, the faithful will question the point in having a trunk house. I'll bet it shows up in volunteer time.

Despite Kim and others tryi... (Below threshold)
mantis:

Despite Kim and others trying to make this a simple issue of law enforcement, there is more to it. This is the first time ever that the Executive has carried out a warrant to search an office of Congress. 219 years and this is the first time. This breaks the historical precedent based largely upon the "speech and debate" clause of the Constitution (Art. I, Sec. 6). This clause has always been given a broad reading due to the doctrine of separation of powers between the branches, and never once in our history have Legislative offices been raided by the Executive. As Hastert states:

"The Founding Fathers were very careful to establish in the Constitution a Separation of Powers to protect Americans against the tyranny of any one branch of government. They were particularly concerned about limiting the power of the Executive Branch," explained the speaker. "Every Congressional Office contains certain Legislative Branch documents that are protected by the Constitution. This protection-as the Supreme Court has repeatedly held-is essential to guarantee the independence of the Legislative Branch. No matter how routine and non-controversial any individual Legislative Branch document might be, the principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech or Debate clause of the Constitution must be respected in order to prevent overreaching and abuse of power by the Executive Branch."

If this makes it to the Supreme Court, the evidence will be inadmissable. My guess is that the DoJ will back down and return the documents.

Oh, and btw it's clear to everyone that Jefferson is a dirty crook who will be convicted (he's on tape accepting bribes already!), but this is a larger issue than just him.

I don't see their logic. I... (Below threshold)
Mac Lorry:

I don't see their logic. In the past Congress has subpoenaed documents from the President and when the President has claimed executive privilege, Congress has taken the President to court and usually won the case. Where was Congress's concern for separation of powers then? If there every was such a privilege it was Congress that rode roughshod over it first, and in so doing, likely nullified it by establishing legal precedence.

Kim--House Speake... (Below threshold)
fletch:

Kim--
House Speaker Dennis Hastert and House Leader John Boehner displayed a sickening amount of arrogance when they said the search of Rep. Jefferson's office was unconstitutional and that the documents retrieved at Rep. Jefferson's office should be returned.

I'm not a leftist moonbat, but this has "Karl Rove" written all over it!

The Dems wanted to run this Fall on the "culture of corruption"...

This is entirely about the Repubs making sure that:
1)This story remains 'front page news' for as long as possible without the MSM "burying" it... and-
2)The widespread Repub reaction ensures that the MSM is forced to emphasize that a Democrat is the guilty party...

"Well played, Mr. Rove"!

How can republicans (these ... (Below threshold)
Ali:

How can republicans (these two), be so stupid.
It was a felony, they're not exempt. Geez.
Political Suicide... the EPA really should check the hill for vapors.

I guess all the other Congr... (Below threshold)
Proud Kaffir:

I guess all the other Congressional Representatives don't want the FBI taking away their bribe money either.

What is this nation coming to when you can't even hide your hard earned bribes in your Congressional Office?

Mantis, are documents perta... (Below threshold)
Wethal:

Mantis, are documents pertaining to felonies like bribery of a congressman considered "legislative documents"? Does it mean the offices and all papers therein are simply off limits? Would kiddy porn, if kept in the congressman's office be beyond the reach of a valid search warrant?

Are the offices like churches in the Middle Ages that were sanctuaries from the secular authorites?

I doubt the SC would ever rule this search unconstitutional. The FBI took too much care to get the court's approval.

Jefferson's lack of cooperation left the FBI with no alternative. If they notified anyone in Congress of the search, it would have leaked to Jefferson who would have a) shredded the documents or b) moved them elsewhere.

If this action were unco... (Below threshold)

If this action were unconstitutional wouldn't the judge have refused to sign the warrant for that reason?

That's supposed to be a joke, right? I can't say that I particularly trust many of our representatives, but I trust the judiciary a lot less. Far be it from me to excuse Jefferson, but the judiciary is spiraling out of control. It's unconstitutional for federal judges to order states to raise taxes and adopt homosexual marriage; Is that stopping them? I don't pretend to understand all the complex issues in this case, but we need to be very careful here.

Mantis, are documents pe... (Below threshold)
mantis:

Mantis, are documents pertaining to felonies like bribery of a congressman considered "legislative documents"? Does it mean the offices and all papers therein are simply off limits? Would kiddy porn, if kept in the congressman's office be beyond the reach of a valid search warrant?

Pretty much, as far as historical precedent and past SCOTUS rulings are concerned.

In any case I'm not saying this isn't a problem. It is. There has to be a way for criminals in Congress to be properly prosecuted, but at the same time there must be restrictions on the power of the Executive over the other branches. If this becomes precedent, what will keep future administrations from raiding the offices of members of Congress? Of Supreme Court justices? Does anyone not think such power could be abused? That is why it's never been done before.

Mantis, would you please pr... (Below threshold)
Wethal:

Mantis, would you please provide the citations fot the precedents? I would like to look them up at my law firm tomorrow.

I'd hope my state's Republi... (Below threshold)
BrandonInBatonRouge:

I'd hope my state's Republican delegation isn't signing on to this crap that Hastert and Bonner are pushing.

(If you can't tell from the title, I'm in Louisiana, which is Jefferson's home state)


The FBI has reasonable evidence to show that Jefferson has likely committed a felony via use of his Congressional position, so they should have the ability to raid his office if he isn't forthcoming with requested information.

If this had been politically motivated rather than a clear-cut case, I'd have sided with Hastert because it sets a bad example.

However, Hastert is attempting to subvert the prosecution of a dirty politician under cover of the Constitution, which sickens me.


I'm hopeful that the Supreme Court, should they get involved, decides that the FBI was justified because there was a preponderance of evidence that Jefferson was engaged in questionable activities and that the raid was not politically motivated.

They shall in all cases,... (Below threshold)
stan25:

They shall in all cases, except treason, felony and breach of the peace

Since when bribery is not a felony? I have always thougth that it was. Do I see shades of Bill Clinton? Oh that's right, it is a Democrat that had his office searched. That must be okay.

As the old saying goes: He who squawkes the loudest has the most to hide These Congress critters must have a lot of skeletons in their office closets

Stan25, ABC News led with t... (Below threshold)
Wethal:

Stan25, ABC News led with the story that Hastert may be involved in the Abramoff scandal. No mention of how, but you might be right. Listen for the sound of shredders in the night around the Capitol.

Still waiting for the citations, Mantis. Want to give them to my summer law clerk to pull from Lexis.

Lessee... they're investiga... (Below threshold)
The Listkeeper:

Lessee... they're investigating a felony level offense.. Check.

They had already subpoenaed the materials in question and the Congressman declined to supply same... Check.

They had a warrant for the materials... Check.


Works for me.

Mantis, would you please... (Below threshold)
mantis:

Mantis, would you please provide the citations fot the precedents? I would like to look them up at my law firm tomorrow.

Sure, but it should be noted that there are no cases in which Congressional offices were searched, as it has never happened. However, for cases of Congressional bribery and the "speech and debate" clause, see:

UNITED STATES v. JOHNSON, 383 U.S. 169
UNITED STATES v. HELSTOSKI, 442 U.S. 477
UNITED STATES v. BREWSTER, 408 U.S. 501

From Brewster:

Admittedly, the Speech or Debate Clause must be read broadly to effectuate its purpose of protecting the independence of the Legislative Branch, but no more than the statutes we apply, was its purpose to make Members of Congress super-citizens, immune from criminal responsibility. In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander and even destroy others with impunity, but that was the conscious choice of the Framers.

Still waiting for the ci... (Below threshold)
mantis:

Still waiting for the citations, Mantis. Want to give them to my summer law clerk to pull from Lexis.

Not that that's necessary. Supreme Court cases are all available on the web.

If there's any truth to tha... (Below threshold)
Mrs. Davis:

If there's any truth to that Hastert charge, the Culture of Corruption thing could explode. Under those circumstances, no court would extend the speech and debate clause to protect bribery. Or kiddie pron.

Thank you for cites, but no... (Below threshold)
Wethal:

Thank you for cites, but none support you, Mantis, and Brewster actually would favor the FBI.

In Johnson, the Rep was supposedly bribed to give a certain speech on the House floor. I can see how that would fall under S&D clause. But it is an unusual set of facts.

In Helstoski, evidence of a "legistive act" done for money could not be introduced to show motive. Also quite fact-specific.

In Brewster, the SC reversed a lower court dismissal of an indictment and reinstated it, saying in part to read the S&D clause in the expansive way the defendant wanted would make Congress virtually immune from any kind of prosecution if the activity was in any way tangental to their jobs. S&D immunity clearly limited to "legislative process."

Taking bribes and hiding the evidence in your office is not part of the legislative process simply because the papers are physically lcoated within the halls of Congress. If so, then as I said above, hiding kiddie porn in one's Congressional office would be part of the "legisative process."

As pointed out earlier, the... (Below threshold)

As pointed out earlier, the Constitution specifically does *not* protect the offices in the areas of 'Treason, Felony and Breach of the Peace'. To misconstrue the general guideline of protection from mere civil warrants from those of more serious crimes is a contradiction directly against the Constitutional language. To assert *that* privelege is to set up an unaccountable class that can go very far afield in committing *any* crime whose locus was in the offices of Congress. Getting the laws made and exempting themselves from many of them is bad enough... more than that is to start setting up something that is beyond all scope and reason of the Constitution itself.

Add to that the fact that the House is allowed to set its own size, which was enacted with PL 62-5 and codified under 2 USC 2 by 37 Stat 13. So, by allowing the House to regulate its own size, exempt itself from its own labor and many other laws, and giving them privelege immunity from non-high crimes searches, it is now posited that they should be immune from felony and treason based searches?

What the above is causeing is the ability of the two parties to create districts safe from any but the most major electoral setbacks, lose accountability to We the People and grant them plenipotentiary immunity from the Laws of the Land.

What part of Landed Aristocracy has not been encompassed yet? Are we to be given to believe that the ONLY accountability for members of the House and Congress in general is elections? Because, if they are given immunity from searches dealing with serious and high crimes, that is what the effect will be.

Strangely, I do not believe that was the intention of the Founders in creating a Republic.

But then, I have strange thoughts.

Wethal,They do sup... (Below threshold)
mantis:

Wethal,

They do support it in light of the fact that the FBI raided his office and took legislative documents (presumably).

It's all bullshit. They ar... (Below threshold)
Bob Jones:

It's all bullshit. They are all corrupt. Throw them all out. All they can do is sell out our country, take bribes, raise taxes, steal our Social Security (Yes, I said STEAL, cause that's what it is when you borrow it with no means or intention of paying it back), and then they expect us to pay for their exorbitant pensions with COL increases while we are stuck with our 401K programs and unfunded Social Security IOUs.

The whole lot is fricking useless. I've had it.

"No matter how routine and... (Below threshold)

"No matter how routine and non-controversial any individual Legislative Branch document might be, the principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech or Debate clause of the Constitution must be respected in order to prevent overreaching and abuse of power by the Executive Branch."

Hassert can blow this out his ass. "Overreaching"? The man has been refused to supply information requested:

FBI officials tried several times to get the information they needed outside of getting a search warrant, but they were refused every time.

I'm not sure where the "Executive Branch" is involved in this.

While I'm not comfortable with this, no one is above the law, and there should be no sancuary for criminal actions.....as this appears to be.

Documents that show a legis... (Below threshold)
Wethal:

Documents that show a legislator was bribed are "legislative documents"? Not even Ruth Ginsberg would vote for that.

"Presumably" were legislative documents? If Jefferson would say what they were, maybe we could tell. He's been a bit silent on this.

If they were perfectly legit legislative documents, he'd be identifying them as such. If they are evidence of a felony, they are not legislative documents.

May I ask what your legal background, if any, is?

Rovin, the FBI is part of t... (Below threshold)
Wethal:

Rovin, the FBI is part of the executive branch, as is the Justice Drpartment..

This is nuts. I propose a c... (Below threshold)
Rich:

This is nuts. I propose a constitutional amendment that would allow us to vote no for Congress. (Tongue only partially in cheek)

If they were perfectly l... (Below threshold)
mantis:

If they were perfectly legit legislative documents, he'd be identifying them as such. If they are evidence of a felony, they are not legislative documents.

Obviously, we do not know what the FBI took from Jefferson's office, so speculation is the order of the day. But as I noted above, the interpretation of the "speech and debate" clause has always been quite broad, encompassing much that is related to legislation beyond speeches given on the floor and actual bills. If in fact the FBI seized only documents or items wholly unrelated to any legislation they will be on firmer ground legally, it seems to me. However even if that is the case this seems pretty shaky. What I think they should have done was indict based on the evidence they have already, and then the court could compel whatever documents were relevant.

It does in fact seem that by provoking a "Congress vs. White House" debate over this, the DoJ has given Jefferson a gift, albeit a temporary one, that enables him to divert attention from his own wrongdoing. From what I hear so far, they have a very good case against him and are quite simply mucking it up with this. Even if the search does in fact turn out to be legal (which it might), it looks bad. And we know what they say about perception in politics.

May I ask what your legal background, if any, is?

No formal background, but constitutional law is a hobby of mine, and my brother and father are both lawyers. In any case I don't claim to be an authority on this. It's just my own informed, but not expert, take.

The search doesn't look bad... (Below threshold)
Mrs. Davis:

The search doesn't look bad to voters. The guy who needs to worry about appearances is Hastert. Hebetter start thinking about how he likes being called Mr. Minority Leader, or worse.

Somebody needs to review the Pennsylvania primary results for these bozos.

What I think they ... (Below threshold)
JD:
What I think they should have done was indict based on the evidence they have already, and then the court could compel whatever documents were relevant.

Mantis - please tell me you are joking.

We have two options here: One, the DOJ jumps thru 30 or 40 hoops asking for Jefferson's office to come up with the stuff (to no avail), whereupon they go to a judge with Chapter and Verse on what has gone on; the judge then signs the warrant - thereby compelling production of the relevant documents - and FBI carries out the warrant.

Option two: The DOJ indicts first. And as soon as Jefferson is indicted, the shredders start shredding. As a result, the DOJ had to act to preserve evidence from eventual destruction by The Esteemed Gentleman from Louisiana and his flacks.

I prefer option two. If you were to read further into the York piece on NRO, he outlines the multiple filter teams that go through the documents to check for S&D conflicts, and their basic instruction to defer in favor of Jefferson on any S&D questions, and to provide a precise log of exactly what was removed.

If Hastert and Boehner want to make this an issue, then they have permanently cemented my disinclination to vote GOP for ANYTHING for the next three or four election cycles. And I have the feeling I ain't alone on this one.

Urghhh. I meant "I prefer ... (Below threshold)
JD:

Urghhh. I meant "I prefer option one."

The Congressional members w... (Below threshold)
Faith+1:

The Congressional members who end up trying to claim they are elite and therefore immune from searches like this, whether they are D or R are going to get hurt by this.

Republicans will hurt themselves and ruin any political mileage they may have gotten to fight the "culture of cooruption" rant of the Dems by appearing to think themselves above the law.

Dems will be hurt but not only looking like they think they are above the law, but also trying to protect one of their own.

I think both parties are stepping on their collective dicks with this one.

WTF do Hastert and Boehner ... (Below threshold)

WTF do Hastert and Boehner get for sticking their necks out for this chooch? Are they worried about the next one being for Ney's office? Gimme a freaking break.

JFC, why don't they just STFU and let the piece of s**t and his lawyers make their own stoopid arguments about the Separation of Powers protecting a CRIMINAL from having his f*****g office searched pursuant to a legitimate search warrant.

I hope the RNC phone bank doesn't make the terrible mistake of calling me for money this month, or the poor little thing on the phone is gonna get an earful of whoopass.

Let's also be blunt:<... (Below threshold)
MikeSC:

Let's also be blunt:

If Tom Delay was the guy whose office was raided, you wouldn't hear a negative word from the Dems.
-=Mike

Option two: The DOJ indi... (Below threshold)
mantis:

Option two: The DOJ indicts first. And as soon as Jefferson is indicted, the shredders start shredding. As a result, the DOJ had to act to preserve evidence from eventual destruction by The Esteemed Gentleman from Louisiana and his flacks.

So you're saying that the Congressman's shredders were not functioning for the past month? Please.

Why would he? The myth that... (Below threshold)
The Listkeeper:

Why would he? The myth that the DOJ wouldnt' get a warrant and search was a comforting one, and comfortable criminals don't crash their computers or cremate their copies.

Hastert has no one to blame... (Below threshold)

Hastert has no one to blame but himself and antiquated House rules which make assumptions about the honor of Representatives.

The reason there has not been a search of congressional offices in the past is that when a Rep. is subpoenaed, he turns it to the Speaker's office. If deemed valid - as they nearly always are - the Speaker's office orders the subpoenaed materials turned over to the Sergeant at Arms who then delivers them to the subpoenaing agency.

Jefferson just ignored the subpoena. He didn't follow the procedure. If that is all one has to do to avoid turning over the materials, no one would ever comply if there was incriminating evidence involved.

It's ridiculous to defend Jefferson for this. If he had followed the law and House tradition, the FBI would have gotten their info in due course. Instead, his stonewalling led a judge to believe the FBI could NOT obtain the materials through the time-honored method, and that is why he took the extraordinary step of issuing the search warrant.

It may become a test case for SCOTUS, but the House will lose if it does.

Mantis, the interpretation ... (Below threshold)
Wethal:

Mantis, the interpretation of the speech and debate clause has been "quite broad"? Interpreted by whom? Broadly by Congress, but their interpretation isn't the one that matters. The Brewster case clearly limited it. SC interpretation is all that matters.

If the shredders in Jefferson's office had been functioning for the "past month," there wouldn't have been any documents to seize. But there were.

You'd be surpised how stupid people are about keeping incriminating documents. At a CLE course I attended last year on evidence, we were talking about evidence of conspiracy. The lecturer mentioned that he had given a CLE course for the Antitrust divison at DOJ.

He was astounded when they told him that conspirators in price fixing sometimes document the scheme and are too stupid to destroy them when the feds come calling. The documents make great evidence against all conspirators.

If you check NRO's Corner, they have a post on how carefully the FBI went through the documents to see that the ones seized were clearly covered by the scope of the warrant. The people who screened the seized documents were not the people who seized them. They wanted that extra layer to insure objectivity.

-Philadelphia lawyer.

If in fact the FBI was very... (Below threshold)
mantis:

If in fact the FBI was very careful about the documents (sorry I don't feel like wading thru NRO to find that post, I'd just feel dirty afterwards), and only took things pertaining to Jefferson's crimes and nothing dealing with legislation was taken, they may be able to get away with this one. That may not be a good thing, however. I'm sure you know how easy it can be to get a warrant if you ask the right judge, and it seems to me that future presidential administrations could use the FBI to spy on their political enemies. I'm not saying its likely or anything, but that it's possible.

In any case this whole mess does beg the question, why weren't Cunningham and Delay's offices searched in this fashion? Did they comply with all subpeonas?

It is with great interest t... (Below threshold)
James Freemanj:

It is with great interest that I read all the passages from such learned writers. I can only provide my humble opinon gathered from 60 yeaars of voting and following the politcal culture. I consider myself very conserative and have voted that way 90 per cent of the time. But the fire storm that has erupted from the search of Jefferson"s office is the final straw in my beleif in the validity of our elecated officials. To claim that congressional offices are santuaries, areas that can be used for any and all kinds of felonious activities is without question the most arrogant stance that I have heard of, that our so called honoraboe elected officals are answerable to no one or no law is an example of why re-call should be availabel and enforced. All congressmen and senators would be forthwith sent home. It borders on treason for them to take such a stance.

The previous board is an ex... (Below threshold)
James Freemanj:

The previous board is an example of why I don't write more often, Please ignore the spelling errors and just blame them on an agitated mind and old fingers. But I stll can find no part of the constitution that gives basis to the idea of congressional offices compete immunity.




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