FBI raid and Separation of Powers

[Army Fencer]

Okay, I feel that I have a very good understanding of constitutional law, but I don't understand how separation of powers applies to the Rep. William Jefferson case.

According to Youngstown Sheet & Tube Co. v. Sawyer, the executive branch can only act on Congressional law or the Constitution, but I think this action fell within this umbrella.

[Philistine]

Originally Posted by Army Fencer

Okay, I feel that I have a very good understanding of constitutional law, but I don't understand how separation of powers applies to the Rep. William Jefferson case.

According to Youngstown Sheet & Tube Co. v. Sawyer, the executive branch can only act on Congressional law or the Constitution, but I think this action fell within this umbrella.

The issue arises because of the Speech and Debate clause of the Constitution. An explanation of the issues surrounding the clause is given by the Criminal Manual for Federal Prosecutors:

The Federal offenses of bribery and gratuities apply to payments made in consideration for, or to thank or curry favor with, Members of Congress and their legislative staffs. However, where an official of the Legislative Branch is the intended recipient, the task of proving the "official act" element can present prosecutors with unique challenges rooted in the Speech and Debate Clause of the U.S..Constitution. U.S. Constit. Art I, sec 6, cl 1.

The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches. Gravel v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395 U.S. 486 (1969).

While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527. The Supreme Court has declared that "past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause," including speeches in committee as well as those on the Floor of the Chamber, the Senator or Representative's votes, and his or her explanations for them. A somewhat wider latitude has been allowed insofar as the admissibility of activities that took place occurred prior to a legislative act. United States v. Helstoski, 442 U.S. 477, 489 (1979). However, the parameters of what constitutes a "legislative act" are quite broad, and can severely impair the ability of prosecutors to prove bribery and gratuity cases where the recipient is an elected Member of the Legislative Branch.

When evidence embraced by this privilege is introduced--either in trial or in grand jury proceedings--the effect can be as troubling to the prosecution as introducing the fruits of an illegal search. See United States v. Durenburger, 1993 WL 738477 (D.Minn 1993); Helstoski, supra; compare Johnson.

In addition, both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.

--Philistine

[Inquartata]

The clause cited reads in its entirety: "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."

a) Accepting bribes is a class E or class D felony under the US Code, Title 18

b) Note that the clause does NOT as Philistine's article says read that "they shall nor be questioned in any place", but rather that "they shall not be questioned in any other Place". As phrased this means that they can be questioned in their House but nowhere else.

c) Seizing papers from an office building does not constitute a "questioning".

d) An office building is not part of either House of Congress.

e) No one has been arrested.


I don't see any grounds whatsoever in the Constitution as it is written to extend "speech and debate" immunity to immunity from seach and seizure of evidentiary papers and effects from an office or private residence, assuming proper warrants.

[Philistine]

Originally Posted by Inquartata

{snip}
a) Accepting bribes is a class E or class D felony under the US Code, Title 18

I believe it's actually a class C felony (15 year max imprisonment for 18 U.S.C. § 201(2)--accepting a bribe).

b) Note that the clause does NOT as Philistine's article says read that "they shall nor be questioned in any place", but rather that "they shall not be questioned in any other Place". As phrased this means that they can be questioned in their House but nowhere else.

Don't blame me. Blame the Justice Department, it's their site.

c) Seizing papers from an office building does not constitute a "questioning".

Depends on the papers. Committee reports, drafts of bills, various other things are covered and priviliged.

d) An office building is not part of either House of Congress.

No idea--but I suspect they are. But the objection isn't, AIUI, that a physical search of a Congressman's office would violate the privilige, rather that taking papers may, as some of those papers may contain or be materials protected by the Speech and Debate Clause.

A search for drugs or cash, for instance, wouldn't implicate the clause.

e) No one has been arrested.

Actually, two people have already pled guilty to being involved in bribery with Jefferson, one of them is his former aide.

I don't see any grounds whatsoever in the Constitution as it is written to extend "speech and debate" immunity to immunity from seach and seizure of evidentiary papers and effects from an office or private residence, assuming proper warrants.

It does seem a stretch to me to suggest that anything the government is interested in would be protected by the Speech and Debate clause--(mostly because if it is protected, they still can't use it, even if they found it). The principal -- ostensibly -- is that the executive branch shouldn't have the power to ransack through privileged documents to get those that aren't priviliged. How that gets balanced is the question.

The thing that raises my hackles a bit is that this is the first time it's ever been done. I'm not sure if this was a shot across Congress's bow to get them to be forthcoming in any Abramoff-related requests, or just a shift in thinking at the Justice Department, or something else. Congress's reaction to this does seem a bit self-serving--on the other hand, this is a brand-new action by Justice for an issue that has existed for a long time.

My favorite saying to come out of this is: Congress's take on warrants--"too good for you, not enough for us."

--Philistine

[Army Fencer]

Thanks, Philistine for introducing me to the Speech or Debate Clause. I would have completely missed that.

Is it possible the Justice Department acted as strongly as it did because it was concerned about the $90,000 evaporating?

I know that I'm obsessing over a page 2 story, but I've sworn to uphold and defend the Constitution, so I'm sure you'll understand

[obsidian]

Originally Posted by Constitution

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.

The way the clause is written indicates that rule of law superceeds legislative immunity. This was further reinforced by United States v. Johnson. In this case, Congress clearly favors traditional procedure--not the Constitution itself--over rule of law. This is bothersome, inspite the unprecidented nature.

Congress's response was more than just "self-serving;" it was an active attempt to preserve bribery!

[Philistine]

Originally Posted by Army Fencer

Thanks, Philistine for introducing me to the Speech or Debate Clause. I would have completely missed that.

No problem. I was only peripherally aware of it before this situation hit. It's not really something that gets used alot.

Here is a pretty good findlaw article on it (scroll down a bit), explaining it a bit more.

A couple of the linked cases discuss the history of the clause well.

Is it possible the Justice Department acted as strongly as it did because it was concerned about the $90,000 evaporating?

No. They got the $90K from a search of his house--which doesn't implicate the clause. So they already had it.

The thing that puzzles me about the case is that they pretty much seem to have him dead to rights. Got him on tape taking a $100K bribe, found $90K of that in his freezer, got people who will testify against him. So why do you use this case to suddenly break with history?

I don't know what documents they were looking for, since they've blacked that out of the search warrant that was released--but I've got to wonder if there was really any need to get them this way.

--Philistine

[Philistine]

Originally Posted by obsidian

{snip} Congress's response was more than just "self-serving;" it was an active attempt to preserve bribery!

I don't see it.

IIRC, Congress has offered a compromise where it will examine the papers and determine which would be covered by the Clause. I haven't seen any indication that there is any real movement in Congress to protect Jefferson.

Are some members looking to force a precedent for upcoming probes--probably. But my feeling is that Congress is prickly enough they would have done this regardless. YMMV.

--Philistine

[Fechter1]

You know, just once I'd like to see all of congress that worked up about violations of OUR freedoms...

If pro is the opposite of con, what's the opposite of progress?

[umbrella]

Hi. I can't believe the Jefferson thing either. You know that was my former stomping ground and I almost visited his offices in 2002, while I was living on the Jefferson/Orleans Parish Line.

Louisiana Politics is weird and it goes back too far to sort out, but we make a choice when we step up to the plate to take responsibility. Jefferson had an easy job. The people loved him, there was no animosity whatsoever, people were proud of Mr. Jefferson and his name was the same as the Parish he lived in and served. He was loved by Orleans Parish as well.

More later.

[Slim]

Originally Posted by umbrella

<SNIP>

More later.

Thanks for the heads up.

[seak]

So as someone who has worked in a Congressional Office, part of the issue is perception:

Basically the reason that in general a search is not allowed to be conducted is becuase Congress does not want the Executive Branch seeing it's papers (seperation of power and all), as the Department of Justice is controlled by the President, it is not a large strech for members of congress to see a President using something like this to get at papers that he shouldn't see.

For instance: A House member is "suspected" (maybe a weak or strong case) of bribery, he also happens to be chair of an important committee that is setting up to hold hearings that will be unkind to the Executive Branch. The Dept of Justice orders a search of his conressional office, and in the process removes documents that pertain not only to the alleged bribery but also to the hearings, giving the executive branch a heads up.

This may be an extreme example but it is what has Congresspeople everywhere worried, and is why they are so up and arms about the whole thing. Generally speaking if the DOJ had tried to pass the idea through Congress they almost certainly would have gotten the documents and not had to do the search. Basically it was probably an unecessary action.

As an aside Congressional Office buildings are attached to the Capitol and are considered part of the Capitol complex. If the office buildings were said not to be covered under congressional immunity, there would not be enough space in the Capitol for all of the papers and people who would suddenly be working in there.

[Army Fencer]

It's topical:

[HDG]

Correct me if I'm wrong, but wouldn't there have been a court-issued warrant for this search? If there was, it seems to me that much of the sturm und drang is misplaced.

[Philistine]

Originally Posted by HDG

Correct me if I'm wrong, but wouldn't there have been a court-issued warrant for this search?

Yes.

If there was, it seems to me that much of the sturm und drang is misplaced.

It may well be misplaced, but I'm not sure the fact that there was a warrant is the reason. What makes you say that?

--Philistine

[HDG]

Originally Posted by Philistine

Yes.



It may well be misplaced, but I'm not sure the fact that there was a warrant is the reason. What makes you say that?

--Philistine

It indicates that the search has the imprimatur of two branches of the government, the second of which has given presumptive approval of the legitimacy, basis and scope of the search and the constitutional implications of the search.

[Philistine]

Originally Posted by HDG

It indicates that the search has the imprimatur of two branches of the government, the second of which has given presumptive approval of the legitimacy, basis and scope of the search and the constitutional implications of the search.

Yes, but questions relating to seperation of powers issues aren't construed merely by a headcount. For instance, in the case of legislation the Supreme Court holds to be unconstitutional, both Congress and the President presumably strongly disagree (or they would not have signed it).

That's even more so the case, I think, in a warrant situation, where there is no ability of a party to contest pre-warrant, its issuance.

That being said, it did appear that there was a significant attempt to prevent anything priviliged from being ultimately used--but I'm not sure that really addresses the Constitutional and political issues at play.

--Philistine

[Inquartata]

Originally Posted by Philistine

I believe it's actually a class C felony (15 year max imprisonment for 18 U.S.C. § 201(2)--accepting a bribe).

You know what? I got distracted when I was looking for the penalties. I posted the terms of imprisonment prescribed for illegal immigration instead of for accepting bribes...

Withal, though, I am only seeing in the code you cite that accepting bribes is penalized under section 216...but section 216 concerns only offenses punishable by imprisonment of 2 years or less...and mentions only sections 203 and subsequent, not 201...

Two years or less would make a class E felony; 1 year a class A misdemeanor...

Don't blame me. Blame the Justice Department, it's their site.

You cited them; guilt by association! You shall be subject to the penalties indicated!

Actually, it's a chancy thing, relying on opinions from Justice these days, alas...

Depends on the papers. Committee reports, drafts of bills, various other things are covered and priviliged.

I still don't see how seizing a paper equates to "questioning".

No idea--but I suspect they are.

Where then is the line drawn? Is a Congressman's office in his home state part of Congress? What about his desk at home? Is the briefcase in his car part of the House of Representatives?

But the objection isn't, AIUI, that a physical search of a Congressman's office would violate the privilige, rather that taking papers may, as some of those papers may contain or be materials protected by the Speech and Debate Clause.

Yes, but a blanket proscription on seizing ANY papers does not seem justifiable. I mean, a sticky note saying "Pick up drycleaning"? His copy of the NYT? Is the search warrant itself a privileged document once it crosses his threshhold?

A search for drugs or cash, for instance, wouldn't implicate the clause.

Meh, but currency is certainly "paper".

Actually, two people have already pled guilty to being involved in bribery with Jefferson, one of them is his former aide.

No persons protected by the Constitution from normal arrest have been arrested; no Congressmen. Arrests of other individuals would not trigger a Constitutional complaint.



[

The principal -- ostensibly -- is that the executive branch shouldn't have the power to ransack through privileged documents to get those that aren't priviliged. How that gets balanced is the question.

Indeed. But I suspect that the FBI knew what they were looking for by that point...

The thing that raises my hackles a bit is that this is the first time it's ever been done.

There has always to be a first time, you know.