The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Wednesday, May 31, 2006
Congress: Above the Law? I think NOT.
Pejman Yousefzadeh, writing in Tech Central Station, zeroes in on Members of Congress who seem to believe the law doesn't apply to them. I personally don't understand why the Majority Leader, a member of the Republican Party, is siding with Nancy Pelosi and with a two-bit Louisiana hustler--but I don't like it one bit:
The reaction of certain members of Congress to the FBI search of Rep. William Jefferson's office in light of allegations that Rep. Jefferson took bribes has placed Congress in an even poorer light. Various Representatives and Senators have objected to the search, contending that it is an encroachment on the prerogative of the Legislative Branch by the Executive -- this despite the fact that the FBI acted fully within its rights and backed up by a search warrant that was a last resort after repeated attempts to arrange for a search of Rep. Jefferson's office without having to resort to the use of a search warrant. Indeed, shoddy legal analysis has combined with poor political judgment to give Congress a black eye over the entire issue.
In the wake of the search of Rep. Jefferson's office, Speaker Dennis Hastert and Minority Leader Nancy Pelosi went so far as to demand that the papers seized from Rep. Jefferson's office be returned to him -- prompting Attorney-General Alberto Gonzales and other key members of the Justice Department vaguely to threaten that they would resign rather than cater to Hastert's and Pelosi's demands. Such principled stances appear to be few and far between, however; even President Bush appears to have been stampeded into deciding to seal the Jefferson documents for 45 days in order to institute a "cooling off period" -- an extraordinary piece of intervention by the President of the United States in an ongoing criminal probe.
House Judiciary Committee Chairman James Sensenbrenner has decided to institute hearings on the issue -- claiming that the FBI search of Rep. Jefferson's office was just as inappropriate as a Capitol Hill police search of the Oval Office would be. This argument is nonsensical on its face; the Capitol Hill police's jurisdiction does not extend beyond Capitol Hill while the FBI was well within its rights to conduct its search of Rep. Jefferson's office in light of the allegations that Rep. Jefferson broke federal law by accepting bribes. Alas, even patently nonsensical claims such as the ones proffered by Chairman Sensenbrenner are finding their place in the discourse surrounding this issue instead of being laughed out of the realm of respectable opinion.
By far the most prevalent legal justification cited to decry the search of Rep. Jefferson's office has been the Speech and Debate Clause found in Art. I, Sec. 6 of the Constitution. The Speech and Debate Clause states the following:
"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."
Purportedly pursuant to the Speech and Debate Clause, the House leadership put out a set of talking points designed to advance the argument that the FBI search constituted an encroachment on Congressional privileges. This blog post takes apart the talking points and points out that the House leadership does not even read carefully the case law it claims support its arguments. The House leadership cited to the Supreme Court case of United States v. Helstoski in defense of its positions but failed to note the following passages that undermine its very arguments:
"... A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.
[...]
"... Of course, a Member can use the Speech or Debate Clause as a shield against prosecution by the Executive Branch, but only for utterances within the scope of legislative acts as defined in our holdings. That is the clear purpose of the Clause." (Emphases added.)
Obviously, taking bribes does not constitute "an act generally done in Congress in relation to the business before it." It does not constitute a thing "generally said or done in the House or the Senate in the performance of official duties." And taking bribes is not "within the scope of legislative acts" as defined by holdings of the Supreme Court (at least, one hopes not). As such, it is impossible to see how reliance on the Speech and Debate Clause is supposed to have shielded Rep. Jefferson's office from a search conducted by the FBI with a warrant duly obtained from a judge.
The Speech and Debate Clause has been dismissed by prominent legal commentators and observers. Backing up the commonsense observation that taking bribes is not "within the scope of legislative acts, University of Virginia law professor Robert Turner points out that:
"...as the Supreme Court observed in the 1972 case of U.S. v. Brewster, the clause was never intended to immunize corrupt legislators who violate felony bribery statutes -- laws that have expressly applied to members of Congress for more than 150 years. In Brewster, the court noted the clause was not written "to make Members of Congress super-citizens, immune from criminal responsibility," adding: "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."
Such behavior is therefore not protected by the Constitution. The purpose of the Speech or Debate Clause was to protect the integrity of the legislative process, and the court noted that bribery, "perhaps even more than Executive power," would "gravely undermine legislative integrity and defeat the right of the public to honest representation.""
Yale law professor Akhil Reed Amar writes:
"...No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace" -- and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes. Following Blackstone, the U.S. Supreme Court has read the catchall expansively in leading cases decided in 1908 and 1972. Thus, sitting congressmen enjoy no special immunity from arrests in ordinary criminal cases.
"So, what did the Arrest Clause actually privilege? Basically, it insulated a sitting congressman from certain civil lawsuits brought by private plaintiffs seeking a court order that would physically "arrest" the defendant, with the effect (and perhaps purpose) of removing the congressman from the floor and thus disenfranchising his constituents. As Thomas Jefferson explained in his famed Manual of Parliamentary Practice: "When a representative is withdrawn from his seat by summons, the people, whom he represents, lose their voice in debate and vote." The theory was that one private litigant should not be allowed to undo the votes of thousands.
"None of what T.J. said helps W.J. [Rep. William Jefferson]. W.J. is a target of a criminal corruption investigation, and if criminally charged, he would have no more Arrest Clause protection than any of the countless other sitting Congress members who have been criminally prosecuted over the years -- Dan Rostenkowski, Duke Cunningham, and Tom DeLay, to name just three."
In the end, reliance on the Speech and Debate Clause, fatuous comparisons between the FBI's warrant-based search and a hypothetical search of the Oval Office by Capitol Hill police (not to mention unjustified demands for the return of Rep. Jefferson's papers) are but fig leaves for the real issues at stake; the overzealous assertion of Congressional powers and prerogatives. To be sure, Congress must defend its rights and authority; if it does not, no one will. But the defense of rights and authority must be based on a solid foundation, something those members of Congress who decry the search of Rep. Jefferson's office sorely lack in their arguments.
Remember, the Republican majority in the House of Representatives staked their claim to power twelve years ago via the "Contract with America," the first article of which said that "all laws that apply to the rest of the country [should] also apply equally to the Congress."
It was a good idea back in 1994. It is a good idea now. Let's enforce it.
The reaction of certain members of Congress to the FBI search of Rep. William Jefferson's office in light of allegations that Rep. Jefferson took bribes has placed Congress in an even poorer light. Various Representatives and Senators have objected to the search, contending that it is an encroachment on the prerogative of the Legislative Branch by the Executive -- this despite the fact that the FBI acted fully within its rights and backed up by a search warrant that was a last resort after repeated attempts to arrange for a search of Rep. Jefferson's office without having to resort to the use of a search warrant. Indeed, shoddy legal analysis has combined with poor political judgment to give Congress a black eye over the entire issue.
In the wake of the search of Rep. Jefferson's office, Speaker Dennis Hastert and Minority Leader Nancy Pelosi went so far as to demand that the papers seized from Rep. Jefferson's office be returned to him -- prompting Attorney-General Alberto Gonzales and other key members of the Justice Department vaguely to threaten that they would resign rather than cater to Hastert's and Pelosi's demands. Such principled stances appear to be few and far between, however; even President Bush appears to have been stampeded into deciding to seal the Jefferson documents for 45 days in order to institute a "cooling off period" -- an extraordinary piece of intervention by the President of the United States in an ongoing criminal probe.
House Judiciary Committee Chairman James Sensenbrenner has decided to institute hearings on the issue -- claiming that the FBI search of Rep. Jefferson's office was just as inappropriate as a Capitol Hill police search of the Oval Office would be. This argument is nonsensical on its face; the Capitol Hill police's jurisdiction does not extend beyond Capitol Hill while the FBI was well within its rights to conduct its search of Rep. Jefferson's office in light of the allegations that Rep. Jefferson broke federal law by accepting bribes. Alas, even patently nonsensical claims such as the ones proffered by Chairman Sensenbrenner are finding their place in the discourse surrounding this issue instead of being laughed out of the realm of respectable opinion.
By far the most prevalent legal justification cited to decry the search of Rep. Jefferson's office has been the Speech and Debate Clause found in Art. I, Sec. 6 of the Constitution. The Speech and Debate Clause states the following:
"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."
Purportedly pursuant to the Speech and Debate Clause, the House leadership put out a set of talking points designed to advance the argument that the FBI search constituted an encroachment on Congressional privileges. This blog post takes apart the talking points and points out that the House leadership does not even read carefully the case law it claims support its arguments. The House leadership cited to the Supreme Court case of United States v. Helstoski in defense of its positions but failed to note the following passages that undermine its very arguments:
"... A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.
[...]
"... Of course, a Member can use the Speech or Debate Clause as a shield against prosecution by the Executive Branch, but only for utterances within the scope of legislative acts as defined in our holdings. That is the clear purpose of the Clause." (Emphases added.)
Obviously, taking bribes does not constitute "an act generally done in Congress in relation to the business before it." It does not constitute a thing "generally said or done in the House or the Senate in the performance of official duties." And taking bribes is not "within the scope of legislative acts" as defined by holdings of the Supreme Court (at least, one hopes not). As such, it is impossible to see how reliance on the Speech and Debate Clause is supposed to have shielded Rep. Jefferson's office from a search conducted by the FBI with a warrant duly obtained from a judge.
The Speech and Debate Clause has been dismissed by prominent legal commentators and observers. Backing up the commonsense observation that taking bribes is not "within the scope of legislative acts, University of Virginia law professor Robert Turner points out that:
"...as the Supreme Court observed in the 1972 case of U.S. v. Brewster, the clause was never intended to immunize corrupt legislators who violate felony bribery statutes -- laws that have expressly applied to members of Congress for more than 150 years. In Brewster, the court noted the clause was not written "to make Members of Congress super-citizens, immune from criminal responsibility," adding: "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."
Such behavior is therefore not protected by the Constitution. The purpose of the Speech or Debate Clause was to protect the integrity of the legislative process, and the court noted that bribery, "perhaps even more than Executive power," would "gravely undermine legislative integrity and defeat the right of the public to honest representation.""
Yale law professor Akhil Reed Amar writes:
"...No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace" -- and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes. Following Blackstone, the U.S. Supreme Court has read the catchall expansively in leading cases decided in 1908 and 1972. Thus, sitting congressmen enjoy no special immunity from arrests in ordinary criminal cases.
"So, what did the Arrest Clause actually privilege? Basically, it insulated a sitting congressman from certain civil lawsuits brought by private plaintiffs seeking a court order that would physically "arrest" the defendant, with the effect (and perhaps purpose) of removing the congressman from the floor and thus disenfranchising his constituents. As Thomas Jefferson explained in his famed Manual of Parliamentary Practice: "When a representative is withdrawn from his seat by summons, the people, whom he represents, lose their voice in debate and vote." The theory was that one private litigant should not be allowed to undo the votes of thousands.
"None of what T.J. said helps W.J. [Rep. William Jefferson]. W.J. is a target of a criminal corruption investigation, and if criminally charged, he would have no more Arrest Clause protection than any of the countless other sitting Congress members who have been criminally prosecuted over the years -- Dan Rostenkowski, Duke Cunningham, and Tom DeLay, to name just three."
In the end, reliance on the Speech and Debate Clause, fatuous comparisons between the FBI's warrant-based search and a hypothetical search of the Oval Office by Capitol Hill police (not to mention unjustified demands for the return of Rep. Jefferson's papers) are but fig leaves for the real issues at stake; the overzealous assertion of Congressional powers and prerogatives. To be sure, Congress must defend its rights and authority; if it does not, no one will. But the defense of rights and authority must be based on a solid foundation, something those members of Congress who decry the search of Rep. Jefferson's office sorely lack in their arguments.
Remember, the Republican majority in the House of Representatives staked their claim to power twelve years ago via the "Contract with America," the first article of which said that "all laws that apply to the rest of the country [should] also apply equally to the Congress."
It was a good idea back in 1994. It is a good idea now. Let's enforce it.
