News Jefferson, D-La., office searched by F.B.I.

[BobG]

I've read on cnn.com where one of the house leaders ran to the white house and complained to bush about the FBI not playing nice. Is there some law or statute that says that the senate and house offices are off limits to investigations or something or is it just that they're all afraid that their sanctuaries are being threatened? Didn't the Supreme Court just rule that law enforcement can enter your home if they have a search warrant and wait a reasonable amount of time after knocking?

A lot of Congressmen are upset about the search. The Republicans have been a little more vocal, but only because the Democrats are afraid of appearing to protect a corrupt Democratic Congressman.

On the surface, you would think searching a Congressional office would follow the same law as for a person's home. The controversy arises over separation of powers - can the executive branch conduct searches of offices of the congressional branch.

From San Francisco Chronicle

The Senate Rules Committee is examining the episode. Rep. John Boehner, R-Ohio, the House majority leader, predicted the separation-of-powers conflict would land at the Supreme Court.

A court challenge would place all three branches of government in the fray over whether the obscure "speech and debate" clause of the Constitution, which offers some legal immunity for lawmakers in the conduct of their official duties, could be interpreted to prohibit an executive branch search on congressional property.

As far as bribery goes, it depends on what you mean. Very few Congressmen accept bribes for personal financial gain.

The most common ethical issues that catch politicians is how money gets into their election campaigns. It's an especially gray area when lobbyists get involved. It becomes hard to tell whether the politician is setting his policies in response to campaign contributions or whether the campaign contributions are a response by lobbyists to ensure candidates sympathetic to their cause are elected.

I think a few more accept quite a few perks that exhibit their personal power. It's almost as if being important enough to get the perks is more important than the perks themselves, hence how easy it is for Congressmen to slip across the line in what they're accepting.

A lot of Congressmen have huge egos. A lot of Congressmen cross the line in order to get re-elected. But very few are motivated by greed.

 

[SOS2008]

I am sure the search will be defended under the infinitely extendable exra-Constitutional presidential powers that Bush now claims.

Interesting that the White House didn't choose to search the offices of Republican representatives under investigation. Perhaps Bush/Cheney hoped they could once again expand the Executive using this tactic on a Democrat. Ah, but Congress as a whole realizes it must not allow the White House to further usurp their power--no matter what party the victim belongs to.

Other than that, there are so few black Americans in positions of power in our government. It is a shame when those who are do not provide a good role model for future generations.

 

[Astronuc]

May 25, 2006
House Leaders Demand Return of Seized Files
By CARL HULSE

WASHINGTON, May 24 — The constitutional clash pitting Congress against the executive branch escalated Wednesday as the Republican and Democratic leaders of the House demanded the immediate return of materials seized by federal agents when they searched the office of a House member who is under investigation in a corruption case.

The demand, by Speaker J. Dennis Hastert, Republican of Illinois, and Representative Nancy Pelosi of California, the Democratic leader, underscored the degree of the anger generated among members of both parties on Capitol Hill by the search on Saturday night at the office of Representative William J. Jefferson, Democrat of Louisiana, who has been accused of accepting bribes.

"The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years," Mr. Hastert and Ms. Pelosi said in a rare joint statement.

NY Times, May 25, 2006

If they had a warrant, and if the warrant is based on 'probable cause', i.e. evidence that a crime has been committed, what's the big deal?

 

[Gokul43201]

If they had a warrant, and if the warrant is based on 'probable cause', i.e. evidence that a crime has been committed, what's the big deal?

I don't get this either !

 

[SOS2008]

May 25, 2006
House Leaders Demand Return of Seized Files
By CARL HULSE
NY Times, May 25, 2006

If they had a warrant, and if the warrant is based on 'probable cause', i.e. evidence that a crime has been committed, what's the big deal?

It should be at least as difficult as it is to get documents from the White House?

So now they have Hastert on the defensive. Congress has to be careful of looking like they are just trying to protect their own hides. Most Americans will not understand separation of powers issues. The public only knows a crime was committed and the criminal should be apprehended. It's a balancing act indeed.

 

[Tarheel]

President Bush ordered the Justice Department yesterday to seal records seized from the Capitol Hill office of a Democratic congressman, representing a remarkable intervention by the nation's chief executive into an ongoing criminal probe of alleged corruption.

link to story... http://www.msnbc.msn.com/id/12981517/

With Bush's approval rating so low this seems like another mistake to me.
Won't this be viewed as the President helping to protect yet another crooked politician?

 

[BobG]

link to story... http://www.msnbc.msn.com/id/12981517/

With Bush's approval rating so low this seems like another mistake to me.
Won't this be viewed as the President helping to protect yet another crooked politician?

Actually, I was surprised for a different reason. With the executive branch having fallen into the habit of thumbing its nose at Congress, I was surprised to see Bush intervene to put this on hold until the separation of powers issues were settled.

As long as Republican and Democratic Congressmen are divided on executive branch actions, the executive branch has a lot of room to expand its power. The last thing it needs is an issue that unites Congress against the President.

 

[Astronuc]

It is rather distressing to see the Republicans and Democrats in Congress united to protect themselves.

What about the people's business!? That is what the members of Congress are supposed to focussed on.

If anyone feels so inclined - if you don't want to vote for anyone on any particular ballot in the November elections - write in "Astronuc". I'd love a chance to stir things up.

I'm a non-partisan, non-sectarian Independent. My platform is simple - justice, fairness and liberty for all. And - Be Nice.

Oh, and I DON'T want money. One's money is better spent on one's family and friends, or in the community for schools, libraries, etc . . . .

 

[BobG]

It is rather distressing to see the Republicans and Democrats in Congress united to protect themselves.

What about the people's business!? That is what the members of Congress are supposed to focussed on.

Maybe they're united because the search was a violation of the Constitution. It violates a clause put into the Constitution to ensure the executive branch couldn't intimidate members of the legislative branch.

At it's heart, this is about the same as Bush issuing executive decisions implementing Congressional legislation in a manner different than intended by Congress (as opposed to going through the veto process).

It may seem to have less direct impact, but it's still seen as crossing the line between separation of powers. The search of the Jefferson's office was the first time in American history that the executive branch implemented a search warrant against the legislative branch (the normal procedure is to subpoena the requested documents).

To be fair, there are some that say interpreting the "speech or debate" clause in the Constitution as protecting the physical offices of Congressmen is overly broad. Some say that the clause only protects things related to legislation.

At a minimum, the search entered a very gray area; a very dark gray area.

 

[BobG]

This is the appropriate clause:

Section 6. 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.

This provides an explanation of how the clause has been interpreted by the courts (further down the page).

The most pertinent paragraphs:

Parallel developments may be discerned with respect to the application of a general criminal statute to call into question the legislative conduct and motivation of a Member. Thus, inUnited States v. Johnson, the Court voided the conviction of a Member for conspiracy to impair lawful governmental functions, in the course of seeking to divert a governmental inquiry into alleged wrongdoing, by accepting a bribe to make a speech on the floor of the House of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial. It was this examination into the context of the speech--its authorship, motivation, and content--which the Court found foreclosed by the speech-or-debate clause.

However, inUnited States v. Brewster, while continuing to assert that the clause ''must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,'' the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ''influenced in his performance of official acts in respect to his action, vote, and decision'' on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ''Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as inJohnson, for use of a Congressman's influence with the Executive Branch.'' In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution.

Applying in the criminal context the distinction developed in the civil cases between protected ''legislative activity'' and unprotected conduct prior to or subsequent to engaging in ''legislative activity,'' the Court inGravel v. United States, held that a grand jury could validly inquire into the processes by which the Member obtained classified government documents and into the arrangements for subsequent private republication of these documents, since neither action involved protected conduct. ''While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.''

Traditionally, the clause has been seen to protect the physical offices of Congressmen and the debate has centered on what actions can be prosecuted. The Justice Department and FBI felt the physical location was irrelevant and that the second paragraph applied.

The third paragraph has implications in the executive branch's investigation of classified leaks. From the executive branch's point of view, it would be good to have the Jefferson investigation as a precedent before sending the investigation of leaks down that road.

 

[Astronuc]

Maybe they're united because the search was a violation of the Constitution. It violates a clause put into the Constitution to ensure the executive branch couldn't intimidate members of the legislative branch.

At it's heart, this is about the same as Bush issuing executive decisions implementing Congressional legislation in a manner different than intended by Congress (as opposed to going through the veto process).

It may seem to have less direct impact, but it's still seen as crossing the line between separation of powers.

Yes, I agree with the concern. The executive branch cannot be allowed to initimadate or coerce members of Congress.

On the other hand, Congress should not be so 'cozy' with the president as has been the recent history - somewhat with Democrats, but certainly with the current administration. There is a lot to be said for having opposite parties controlling the Legislative and Executive branches of government.

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;

Well, I believe Jefferson is implicated in commission of a felony (bribery) - so he is not immune from arrest or having his offices searched.

and for any speech or debate in either House, they shall not be questioned in any other place.

This is not applicable. The alleged taking of bribes has nothing to do with speech, debate or official business in Congress. Jefferson allegedly accepted bribes, if I have the story straight.

 

[SOS2008]

I would be less concerned about this matter if it was any other president, and if this was not a historic tactic that could set precedence for other incursions against balance of power. We know Bush/Cheney have strived to expand the Executive, and we have seen a clear pattern of intimidation, whether Joe Wilson, the press/CIA about leaks, etc. What I read in the news yesterday about Hastert being on the defensive with sudden leaks of him being involved with Abramoff IS intimidation and coercion whether he is truly guilty or not.

 

[Rach3]

How does the executive enter here, I'm confused - FBI is a DOJ agency.

 

[SOS2008]

How does the executive enter here, I'm confused - FBI is a DOJ agency.

I believe it was ordered by the White House.

 

[Gokul43201]

How does the executive enter here, I'm confused - FBI is a DOJ agency.

And the DoJ is a dept under the Executive branch.

I'm not clear how exactly "the White House ordered " the search. Can they do something like that ?

And in any case, did or did not the FBI get a warrant for the search of the congressman's office in relation to a felony investigation ?

 

[Skyhunter]

Actually, I was surprised for a different reason. With the executive branch having fallen into the habit of thumbing its nose at Congress, I was surprised to see Bush intervene to put this on hold until the separation of powers issues were settled.

As long as Republican and Democratic Congressmen are divided on executive branch actions, the executive branch has a lot of room to expand its power. The last thing it needs is an issue that unites Congress against the President.

I think there already is an issue uniting the Congress against the president. We call it the mid-term elections.

From the one side that is in the media this is a clear case of a politician using his position for personal gain. Cases like these are somewhat rare compared to the more popular campaign contributions. It would cost each American taxpayer http://www.just6dollars.org/node/42 apiece to publicly finance campaigns, even less if we force the networks to use the public airwaves for the public good and devote prime time to debates and discussions of issues initiatives, and candidates.

Alas we live in a capitalist society, if it doesn't make a profit it must be un-American.

 

[Ivan Seeking]

As reported and a few key points:

The president did not order this search.
The search warrant was issued by a Fed Judge
Instead of a search warrant, there was still the option to issue an order of compliance.

What is important here is the issue of the exec branch and/or the judicial branch applying leverage to the legislative branch through intimidation. So this really does get right to the heart of the separation of powers.

But at the same time, it appears that they really had the goods on Jefferson, so who then does execute a legal search? I have not heard a clear answer on what should have been done.

I think the problem for many of us is that we already see the Bush admin, and the Republicans as a whole, as a rogue government wildly out of control, so how do we now trust that the water boarders aren't again abusing power? How do we know that the evidence wasn't planted by the Feds?

We are so far beyond trust - not even possible as a consideration - that as in all cases, I would error on the side of protecting the Constitution. Allow Congress to dictate how this is handled.

Again, what is it that Congress would normally do if approached by the AG with such a problem? What are the proper channels?

I find it interesting that some Republican leaders have expressed concern on how this appears and not whether or not it was Constitutional. The protection of separation of powers "will send the wrong message" one Congressman objected. Is he kidding!? Is that really what's important here; how it might appear, or that there was a missed opportunity to slam the Dems? Therein lies the difference between a politician and a patriot.

But of course Hastert could be a crook as well. That's a given.

 

[BobG]

Thinking about this, the idea that the physical location of the search is irrelevant has some merit. I would find it hard to believe the USSC would find a search for evidence of bribery (an act they've already said has no relation to legislative activities) illegal just because it was in an office in the Capitol building.

I think it comes down more to an exchange of common courtesy.

The cynical might say it's mutual protection to hide corruption common to all politicians. Government might run better if any government official could have his office searched.

For example, if Watergate investigators could have had gotten a search warrant to search Nixon's office instead of having to rely on a subpoena, there would have been no 18 minute gap in one of the tapes.

Others might say the courtesy is exchanged for a more significant reason. Regardless of the reality that some politicians will be corrupt, do you really want to endure images of the President's office being searched by the police or FBI, or the offices of Congressional leaders searched, especially if political opponents manage to cherry pick the evidence needed to get the search warrant? I think you'd have a new political weapon that would destroy any shred of faith in the government.

I think the damage done by images would be worse than the damage done by a few politicians gaining the time to destroy or tamper with evidence.

 

[Ivan Seeking]

Separation of powers is not a courtesy. It is a Constitutional requirement.