So, What About the Merits?: Was the Search of Rep. Jefferson's Chambers Lawful?

Marty Lederman

I don't intend to answer the question here, only to provide some pointers for folks more interested in the nitty-gritty:

Rep. Jefferson's brief to the dstrict court can be found here.

Akhil Amar runs down most all of the possible arguments from originalist and structuralist perspectives here.

Bob Bauer explains here and here why he thinks there's more to the legal objections than meets the eye -- and further elaborates here on how our eyes should, in fact, be kept on "the big picture."

From what little I've read, the most serious constitutional argument appears to be that some of the materials in Rep. Jefferson's office are protected by the Speech or Debate Clause -- materials that DOJ purports not to be interested in searching; that such materials must be strictly segregated from those not so protected; and that the Administration's procedures for enforcing this separation were inadequate. (Those procedures are described in paragraphs 136-155, pages 74-82, of the affidavit in support of the government's application for the search warrant.) For a sense of the details of this argument, see Eugene Volokh's post (and some of the comments, esp. by "Medis") here.

For what it's worth, even if this argument is a valid one (and I haven't looked at the question closely enough to know whether it is), it hardly seems the stuff of high dudgeon or a constitutional shoot-out at the Rayburn Corral. Perhaps, if this were part of a concerted congressional effort to fight back against the tide of Executive aggrandizement, the outrage might be understandable. But Congress has been almost completely indifferent, for two years running now, with respect to very serious separation-of-powers challenges -- an Executive branch that has repeatedly asserted a constitutional power to ignore statutes regulating the conduct of war; that has kept virtually all of its dubious activities secret from the legislature and public; that has resisted any serious oversight; that has engaged in widespread surveillance of U.S. citizens without warrant or probable cause of wrongdoing (or that the U.S. persons are agents of al Qaeda); etc. And Congress has simply sat back and done nothing. If Denny Hastert, et al., had been fighting tooth and nail on torture, and oversight of Iraq, and the manipulation of intelligence, and the use of signing statements to signal noncompliance with scores of statutes, and violations by NSA of FISA and other statutes, etc., then perhaps this latest incident would rightly be seen as a straw that broke the camel's back. But as Jack has explained, Congress has instead allowed its own core constitutional powers -- such as the enactment of laws -- to be swept aside with impunity by an Administration with a strikingly aggressive view of Executive prerogatives. That legislators care much more about the sanctity of the contents of their offices than about the enforcement of the laws they have written is, perhaps, predictable, but nevertheless unfortunate. (Barney Frank to the same effect: "What we now have is a Congressional leadership, the Republican part of which has said it is okay for law enforcement to engage in warrantless searches of the average citizen, now objecting when a search, pursuant to a validly issued warrant, is conducted of a Member of Congress.")

For a significantly different take on it, however, see Bob Bauer's posts, linked above.
Posted 1:47 PM by Marty Lederman [link]