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Search of Jefferson's Congressional Office Upheld

U.S. District Court Judge Thomas Hogan has upheld the search of Congressman William Jefferson's office. The opinion is here. [Via How Appealing.]

Here's the first paragraph:

"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)).

On the speech and debate clause claim:

Just as a search warrant does not trigger the Fifth Amendment's testimonial privilege, neither does a search trigger the Speech or Debate Clause's testimonial privilege.....

The purpose of the Speech or Debate Clause is rather to protect the independence and integrity of the legislature by not questioning Members of Congress for their legitimate legislative acts.

....Just as the Fifth Amendment does not protect a person from disclosure of incriminating evidence, the Speech or Debate Clause does not prohibit disclosure of legislative material. Rather, it prohibits a Member from having to answer questions as to his legislative activity. Here, Congressman Jefferson has not been questioned about actions that fall within the sphere of legitimate legislative activity.

On the separation of powers claim:

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 33.9 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.

....Finally, the Court finds no support for the proposition that a Member of Congress must be given advance notice of a search, with an opportunity to screen out and remove materials the Member believes to be privileged.

....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.

On the 4th amendment claim, that Jefferson's lawyer wasn't allowed to be present:

The Court finds that there is no right to have one's counsel present during the execution of a search warrant, that there is no exhaustion requirement to the issuance of a search warrant, and further that the affidavit contained no false premise. The search was reasonable under the Fourth Amendment....The Court is not aware of any authority, and Congressman Jefferson points to none, that holds that the right to counsel extends to the execution of a search warrant.

Update: Analysis by TL commenter Scribe:

My short take on the opinion is that the judge is not about to wall the Capitol off from warrants. It seems he's relying on lots of older (60s and 70s vintage) precedent on the scope and protections of Amendment 4, but while he gives that with one hand, he takes with the other. I didn't bother to count how many times he talked about the warrant being reasonable, etc. Lots of orotundity about no man above the law and similar, but that's just sugar with the castor oil.

Short advice to any congresscritters - make sure everything your office does and has in its computers is in some pretty-direct way definitively related to legislative activities - be it legislation, proposed legislation, hearings, etc., because if you don't then (especially in light of Hudson v. Michigan) this case says your mahogany doors ain't gonna stop the FBI from coming in and taking it, and the judges will back the cops.

Big win for the executive, even though the judge intones "trust us, we're neutral judges" way too many times.

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    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#1)
    by scribe on Mon Jul 10, 2006 at 02:39:43 PM EST
    My short take on the opinion is that the judge is not about to wall the Capitol off from warrants. It seems he's relying on lots of older (60s and 70s vintage) precedent re the scope and protections of Amendment 4, but while he gives that with one hand, he takes with the other. I didn't bother to count how many times he talked about the warrant being reasonable, etc. Lots of orotundity about no man above the law and similar, but that's just sugar with the castor oil. Memo to congresscritters - (especially in light of Hudson v. Michigan) this case says your mahogany doors ain't gonna stop the FBI from coming in and taking pretty much whatever they want, and the judges will back the cops. Big win for the executive, even though the judge says something to the effect "trust us, we're neutral judges" time and again. Think of all the blackmail potential for Rover and Abu Gonzo with this one in their pockets. Leak about misconduct to your Congressman - they'll be able to search for it and say they're investigating the leaker.... Congress getting uppity in investigating the Unit? Comes the FBI looking for evidence of, uh, something. This ain't over, not by a long shot.

    The opinion is eminently reasonable and Jefferson's and the Bipartisan committee committee's positions were based on nothing but naked arrogance. You are completely blinded by CONTEMPORARY and TRANSIENT partisan bias. These are Constitutional principles NOT governed by which side of the debate belongs to the political Party YOU prefer. As the Court aptly noted, the real threat to the separation of powers in this case was the assertion that Congress should be the sole arbiter of its own privileges and immunities under the law and shoulf be free to place itself and its members above the law by unilateral decree.

    I find it almost laughable that some would prevent the criminal justice system from pursuing Rep Jefferson. The allegations facing Jefferson are serious indeed. Why should he, and not anyone else, be granted preferential treatment? I submit that he should not. The District Court got it right.

    ""All laws should be made to operate as much on the law makers as upon the people; . . " Since the "executive" considers himself a lawmaker (signing statements, etc.) would the above apply to him, also?

    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#5)
    by Che's Lounge on Mon Jul 10, 2006 at 05:58:25 PM EST
    Precedents? Did they ever search Delay's office, or Cunningham's, or even Dan Rostenkowski's?

    Che, are you trying to defend Jefferson by attacking GOPers? Had Jefferson cooperated with the DOJ requests, he could have avoided the embarrassment of a Capitol Hill search. He played his S&D cards and lost.

    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#7)
    by Che's Lounge on Mon Jul 10, 2006 at 06:08:17 PM EST
    I included Rostenkowski because he WAS a Dem. Helloooo?

    Well the answer to your question is "no" - there was never a search on any of their offices. Should that have prevented a search of Jefferson's office?

    On the subject of signing statements, I don't see any reasonable interpretation of the Constitution which can be made to support the equivalent a "blue pencil veto." I think a President is limited to signing a bill into law in toto or vetoing it in toto. (He can also choose not to sign or veto a bill in which case it becomes law unless Congress is in recess in which case the refusal to sign becomes a functional[pocket] veto.) See, Article I, Section 7: "...Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. " This is a great example of how the separation of powers and "checks and balances" must work. If a dispute arises between the executive and legislative branches, the judiciary must decide (see: Jefferson). However, a court cannot decide unless the controversy is brought before it by legal process. If the Legislature (or a member OR [in my opinion] SOMEONE ELSE WITH STANDING chooses not to challenge the Executive, its position will prevail because the agency involved will interpret and enforce the law in accordance with the President's desire. So, someone needs to challenge in a situation where after a signing statement the executive branch only enforces the law in accordance with the signing statement and not in accordance with the statute as passed by Congress. I'd also suggest that the longer the use of signing statements goes unchallenged and the more frequent they become, the more likely it becomes that the courts will uphold their use because there exists a principle which holds in essence that the longer a thing is practiced without constitutional challenge the better the case that is needed to declare it unconstitutional. (I still think the case against them should be unassailable based on the plain language of the Constitution, but I'm not a Justice.)

    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#10)
    by Sailor on Tue Jul 11, 2006 at 07:25:50 AM EST
    I find it almost laughable that some would prevent the criminal justice system from pursuing Rep Jefferson.
    No one has suggested that jefferson not be prosecuted, that's just a silly strawman. The point is that the exeutive branch just searched all the legislative papers and computers of a member of the opposition with no one else allowed to be present. Can you imagine the wrongwingers' screaming if clinton had done this? And I find it hardly surprising that the judge who granted the warrant originally upheld it. Let's see what an impartial court has to say.

    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#11)
    by Che's Lounge on Tue Jul 11, 2006 at 07:40:59 AM EST
    What's in a name? A lot for those who have nothing else to contribute. They didn't search Cunningham's office, or Rostenkowsi's, because no warrant was deemed necessary and none was sought Oh, well, that explains it. If one cannot see the implications of the unchecked Republican Guard marching into the offices of a Dem congressman, then I cannot educate you.

    "If one cannot see the implications of the unchecked Republican Guard marching into the offices of a Dem congressman, then I cannot educate you." The Executive Branch went to a Judge and got a warrant. Hardly walking in unchecked.

    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#13)
    by squeaky on Tue Jul 11, 2006 at 08:10:12 AM EST
    Big win for the executive, even though the judge says something to the effect "trust us, we're neutral judges" time and again. Think of all the blackmail potential for Rover and Abu Gonzo with this one in their pockets.
    Which makes me wonder what is it that they were looking for? Evidence to use or evidence to lose. Blackmail can go both ways.

    Re: Search of Jefferson's Congressional Office Uph (none / 0) (#14)
    by roy on Tue Jul 11, 2006 at 08:13:22 AM EST
    ...and Congress passed the law making the acts of which Jefferson is accused illegal. All three branches worked together on this one. I see a lot of more-or-less justified hand-wringing over the result of this decision, but not much analysis of the arguments. From this layman's reading, Jefferson's lawyers' arguments seem weak to the point of absurdity. If the judge had accepted them, it would be a very substantial, unprecedented change in the meaning of the Constitution. So if you want Congressmen to have immunity to seizure in their offices, propose a Constitutional amendment. I might even vote for it, if it's narrow enough and provides another way to ensure that felonious senators get caught. But please don't encourage judges to play make-believe with my Constitution.