Balkinization  

Saturday, May 27, 2006

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.

Comments:

As a completely separate controversy, there is the ongoing matter of privacy of journalists' own work product; discuss.

I think JackBalkin is right on how the sealed documents will emerge eventually, after the sting has ceased smarting; as long as the legislative process retains its integrity.
 

All very important, agreed. Good thing we're talking about it.

But there's something we're NOT talking about -- that's the Estate Tax, and how the Senate Republicans are going to try to take it away on June 6.

Democrats won't do anything about it unless we stand up and do something.

Start here: http://menditdontendit.blogspot.com/

You'll find links there to find how we can do something about this.
 

" that's the Estate Tax, and how the Senate Republicans are going to try to take it away on June 6."

Strictly speaking, I think they're proposing to stop "taking it away" from people.
 

1. Why did not the FBI deputize the Capitol Police to conduct the raid, ideally with a representative from Hastert and Pelosi's office present, to make sure this would not be seen as an attempt to intimidate the Congress?

2. If the case was so slam dunk, what charge has been filed against Congressman Jefferson?

3. What about the Fourth Amendment rights of staffers who worked in the office? Congress operates in a less partisan manner than people imagine, and it's entirely possible to have people who vote Republican working in Democratic offices and vice-versa.

4. What is to prevent an Executive, bent on expanding his power to dictatorial levels, from using the FBI to intimidate political opponents, or to use searches as a cover to seize materials of no relevance to a case-- but of relevance to the Executive's power over Congress?

The fact that Congress has been indifferent to our civil liberties is no excuse for us to be indifferent to theirs. Rather, if we are indifferent to their civil liberties, we only invite more depradations against our own.
 

"1. Why did not the FBI deputize the Capitol Police to conduct the raid, ideally with a representative from Hastert and Pelosi's office present, to make sure this would not be seen as an attempt to intimidate the Congress?"

Why, when executing a search of a mob boss, doesn't the FBI deputize his bag men, ideally in the company of a couple of his fellow mafiosos? Well, duh! Because the FBI had no reason to believe that Jefferson wouldn't have been tipped off, and given time to shred any incriminating documents, or move them off site.

The matter might have been different, if Jefferson were some kind of glaring exception to an otherwise saintly body.
 

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