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Bush Orders Jefferson Documents Sealed

President Bush has sealed the records seized by the FBI from Rep. William Jefferson's congressional office.

The president directed that no one involved in the investigation have access to the documents taken last weekend from the office of Rep. William Jefferson, D-La., and that they remain in the custody of the Justice Department's solicitor general.

Bush's move was described as an attempt to cool off a heated confrontation between his administration and leaders of House leaders of both parties, particularly Speaker Dennis Hastert.

The Solicitor General's office? A commenter at Law Prof Orrin Kerr's blog says:

The Solicitor General's office is an impenetrable lockbox! It is clothed in sovereign immunity from everything! What's more, the Solicitor General's offices cannot be breached by a warrant! The Solicitor General speaks and debates before the Supreme Court and thus is protected by Article III AND Article I.

Instapundit weighs in:

Could Al Qaeda have slipped mind-altering drugs into the DC water supply? What's gotten into these people? Or has some sort of deal been cut? Whatever it is, I don't think I like it.

The Washington Post reports:

Bush hoped to mollify Hastert, one of his most reliable legislative allies, at a time of increasingly sour relations with the GOP-controlled Congress, according to White House sources. Tempers rose so high this week that some House Republicans threatened to seek the resignation of Attorney General Alberto R. Gonzales, although GOP leaders said the idea was not seriously considered.

As to Hastert's role, he gave Bush an earful on Air Force One.

On the ride home aboard Air Force One, Hastert was adamant that the Justice Department had violated the Constitution and implored the president to intervene, the sources said. The next day, the two spoke by phone and Hastert told Bush he and other leaders would only intensify their campaign to stop Justice from sifting through the materials seized in the weekend search, according to the accounts.

Is it just coincidence that the feds leaked info to ABC News -- later denied by the Justice Department -- that Hastert was under investigation in the corruption scandals?

And guess whose fingerprints are all over this sealing order?

Bush had Vice President Cheney call Hastert to inform him of his decision.

I'm not getting the separation of powers argument. Neither is Last Night in Little Rock, who just happens to be a major 4th Amendment expert. In his words:

In Rep. Jefferson's case, however, "separation of powers" just won't cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that.....

In agreement on the 4th Amendment issue: White Collar Crime Blog

The Fourth Amendment does not afford any specific protection to legislative offices so long as there is probable cause to believe that there is evidence of criminal activity at the location specified, and the House of Representatives would not have standing to raise a Fourth Amendment claim on its own.

It predicts the issue Jefferson will take to the Supreme Court should the case rise that far is the Speech and Debate Clause issue:

The two leading Supreme Court cases on the scope of the Speech or Debate Clause are United States v. Brewster, 408 U.S. 501 (1972), and United States v. Helstoski, 442 U.S. 477 (1979). In Brewster, the Court stated, "[A] Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." In Helstoski, the Court explained,

Likewise, a promise to introduce a bill is not a legislative act. As to what restrictions the Clause places on the admission of evidence, our concern is not with the "specificity" of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other "legislative acts" such as utterances in committee hearings and reports. But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not a legislative act.

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    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#1)
    by squeaky on Thu May 25, 2006 at 09:02:45 PM EST
    The Solicitor General speaks and debates before the Supreme Court and thus is protected by Article III AND Article I.
    What a prescient spot for thes docs.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#2)
    by Talkleft Visitor on Thu May 25, 2006 at 09:09:15 PM EST
    After all the stonewalling on the NSA issues with 4th Amendment on the part of the Republican members of Congress I'm not surprised that they're struggling with misunderstanding/misusing the Separation of Powers issue. Instead they seem to follow whatever issues gives them the most outrage leverage. Go figure.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#3)
    by Talkleft Visitor on Thu May 25, 2006 at 09:18:48 PM EST
    I think it's all a big ruse, an elaborate fake to keep Jefferson in office in order to have a corrupt Dem around to provide a rebuttal to charges of GOP corruption in November. It makes absolutely no sense for Hastert to let everything else go but get upset to a degree that he tries to act bipartisanly on this issue. If Jefferson is indicted in October, I'm going to dig up this post and promote it across the web. Regardless, I'm happy that Nancy Pelosi is playing hardball. It's about time someone in the party does. Sorry, CBC, but no one sheds any tears for someone caught on tape by the FBI with $90k in cash in their freezer.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#4)
    by Talkleft Visitor on Thu May 25, 2006 at 09:21:27 PM EST
    I'm not sure the issue is so clear cut. If they seized the congressman's papers, then the issue might turn on exactly what those papers were. Drafts of bills or amendments? The work product of a congressman in preparing possible legislation very well might be protected by the Speech and Debate Clause. Unfortunately, we don't know what papers were seized, but I'm just imagining possible scenarios of papers congressmen might have that we wouldn't want the FBI seizing. It isn't hard to imagine.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#5)
    by Andreas on Thu May 25, 2006 at 10:33:35 PM EST
    The WSWS writes:
    In a remarkable acknowledgment of the sharpness of the confrontation between the executive and legislative branches, Bush said, "Our government has not faced such a dilemma in more than two centuries." He noted that the "bipartisan leadership of the House of Representatives believes this search violated the constitutional principle of separation of powers and the speech and debate clause of the Constitution." ... The reasons for the raid on Jefferson's office have nothing to do with fighting corruption, and everything to do with the drive by the clique around Bush and Vice President Dick Cheney to intimidate and silence critics, forestall any investigation into the administration's own illegal actions, and move toward the establishment of a form of presidential dictatorship. ... Hastert's assumption that the ABC News report was an act of intimidation and retaliation by the Bush administration--even were it to prove unfounded--says a great deal about the state of American politics. The titular head of the House of Representatives takes as a given that the top figures in the executive branch, and the leaders of his own party, would not hesitate to employ blackmail, character assassination and the threat of criminal prosecution to silence him and anyone else who stood in their way. It is an open secret in Washington, discussed in private but concealed from the American people, that the US is heading in the direction of a police state, and that those who wield both corporate and political power have no democratic scruples.
    Constitutional crisis over FBI raid on US congressman By Joe Kay and Barry Grey, 26 May 2006

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#6)
    by Talkleft Visitor on Fri May 26, 2006 at 12:12:00 AM EST
    TL, can you clarify what happens when documents are sealed. 1. Does someone physically remove them from the FBI's offices, or whereever they were at the time they were ordered sealed? 2. If so, how do the removers know that they have everything? 3. And what if some of the sealed documents had already been copied?

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#7)
    by Talkleft Visitor on Fri May 26, 2006 at 12:40:51 AM EST
    This action seems to fall in line with the Bushco method of defusing all criticism by characterizing it as "politics as usual". And as long as there is ongoing argument and debate, nothing actually stops them from continuing to act illegally. Now they have created a situation in which congress is protesting actions by the executive branch. Later, if and when congress ever votes to subpoena any WH records, they will assert their right to refuse to comply, and their arguments will refer back to this confrontation. I probably have the legal details all wrong, but this is how it looks to me.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#8)
    by jimakaPPJ on Fri May 26, 2006 at 12:54:09 AM EST
    Let me see. The FBI has raided the office of an apparenty corrupt Congressman and taken papers. The House has its panties in a wad claiming a violation of separtion of powers. Bush says, okay, I'll just seal the papers until this can be sorted out. And the problem is???

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#9)
    by Che's Lounge on Fri May 26, 2006 at 01:40:00 AM EST
    The problem is that the shoe is on the other foot LOL. The FBI has been kicking down doors as "lawful searches" for decades. Mr. Haster et al seem to think this does not apply to them. We'll see.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#10)
    by Che's Lounge on Fri May 26, 2006 at 01:40:31 AM EST
    Sorry Hastert.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#11)
    by Talkleft Visitor on Fri May 26, 2006 at 01:51:49 AM EST
    I can say this one thing for certain. There is one thing we all can agree on is no matter what the issue is if it's based on corruptness or for the good of the people. This Government will find a way to mess it up.What a bungling bunch of imbeciles. Simply Amazing.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#12)
    by Talkleft Visitor on Fri May 26, 2006 at 01:56:14 AM EST