Baseball Crank
Covering the Front and Back Pages of the Newspaper
July 11, 2006
LAW: The Rule of Law Applies to Congress

Judge Thomas Hogan of the US District Court of DC upholds the search of Democratic Congressman William Jefferson's office in the Rayburn building, over the objections of Jefferson and - among others - Speaker Hastert. The opinion is here. Key quotes:

The purpose of the Speech or Debate Clause is not to promote or maintain secrecy in legislative activity.


Congress' capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants, which are only available in relation to criminal investigations, are subject to the rigors of the Fourth Amendment, and require prior approval by the neutral third branch of government.


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. Indeed, the Court is aware of no case in which such a procedure is mandated by any other recognized privilege.

Contrary to the arguments of amicus, legislators do not have the right to determine the scope of their own privilege under the Speech or Debate Clause. The Founders expressly rejected a constitutional proposal that would have permitted Members collectively to be the exclusive judges of their own privileges. 2 Records of the Federal Convention of 1787 503 (Max Ferrand ed., 1966). In opposition to the proposal, Madison explained that it would be preferable "to make provision for ascertaining by law" the extent of privileges "previously & duly established" rather than to "give a discretion to each House as to the extent of its own privileges."


The power to determine the scope of one's own privilege is not available to any other person, including members of the co-equal branches of government: federal judges, . . or the President of the United States, . . .


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. 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.

The rule of law should prevail over the lawmakers.

Posted by Baseball Crank at 12:20 AM | Law 2006-08 | Comments (1) | TrackBack (0)

One problem with the judge's comments-the Framers didn't set up three "co-equal" branches of government.

The Framers quite obviously intended Congress to be pre-eminent, as it has the final say on legislation, treaties, many executive branch appointments, and more; is the only branch that can remove Federal officials from office; sets all Federal pay; is involved in amending the Constitution, which the courts and President are excluded from; has the authority to limit Federal court's jurisdiction; etc.

It's become commonplace to talk of "co-equal" branches but to the extent that this is said of the Federal courts this is authority the courts have assumed, not authority they were given under the Constitution.

Posted by: John Salmon at July 11, 2006 2:22 AM
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