TCS Daily


Above the Law?

By Pejman Yousefzadeh - May 30, 2006 12:00 AM

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.

Pejman Yousefzadeh is a TCS contributing writer.

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102 Comments

Shouldn't the laws apply to the executive as well?
I mean, we have laws against foreign wiretapping, torture, and lots of other things, which the President has said he doesn't have to follow. When Congress passes laws, he doesn't veto them, but adds signing notes saying that he won't enforce certain parts. But, sure, it's Congress where the outlaw problem lies.

Duh!
Of course, Eric ignores the fact that the laws of peace do not apply to the conduct of war. That policy is older than the nation itself.

He also ignores the fact that many of these very laws have exceptions built into them for just such situations (especially the foreign wiretapping).

Finally, he ignores the fact that the laws are passed under the authority granted to Congress, which does NOT generally extend into the war-making powers. That is why military tribunals are separate from civil ones, etc. The Constitution clearly grants the PRESIDENT the war-making powers, not Congress.

But of course, Eric always ignores that which doesn't support his viewpoint.

-Bob

Thank you for parroting what the White House says
Except:

> the laws of peace do not apply to the conduct of war. That policy is older than the nation itself.

There has been no declaration of war.

>He also ignores the fact that many of these very laws have exceptions built into them for just such situations (especially the foreign wiretapping).

As a matter of fact, it's the rules for the exception that are being ignored. The Foreign Intelligence Surveillance Act was enacted in 1978 specifically covering foreign wiretapping. It has provisions for warrants from special courts, allow retroactive warrants. the administration it doesn't have to obey the law because when congress authorized military force.

>Finally, he ignores the fact that the laws are passed under the authority granted to Congress, which does NOT generally extend into the war-making powers. That is why military tribunals are separate from civil ones, etc. The Constitution clearly grants the PRESIDENT the war-making powers, not Congress.

Then you seem to be arguing that there are no legal restrictions whatsoever as long as he says he's doing it in his capacity as commander in chief -- he could round up and execute U.S. citizens without trial, under exactly the same kind of argument.

Amazingly, the White House is right
>"There has been no declaration of war."

Sure there has. Bush declared war on Saddam and the Taliban. The media, the White House, and the UN call it a war everyday. Where you been?

>"The Foreign Intelligence Surveillance Act was enacted in 1978 specifically covering foreign wiretapping. It has provisions for warrants from special courts, allow retroactive warrants. the administration it doesn't have to obey the law because when congress authorized military force."

What part of this don't you understand? In a time of war the FISA regulations do not have to be followed. Perhaps the question you should ask is, if the Democrats consider this a non-issue, as they finally have once it was explained to them what was really happening, why would you keep beating this dead horse?

>"Then you seem to be arguing that there are no legal restrictions whatsoever as long as he says he's doing it in his capacity as commander in chief -- he could round up and execute U.S. citizens without trial, under exactly the same kind of argument."

Time to move back into the world of the rational. Using an extreme, hysterical, hypothetical example such as execution without trial is the height of ignorance. Under what circumstance would this be required to protect the lives, safegaurd American interests, and the secure the borders of the nation?

Not only would this never happen, I would find it very hard to believe that your average soldier would obey the orders to just round up US citizens and shoot them.

Just look at the uprising against detaining terrorists, feeding them well, and playing Barney music for them. Do you really think mass executions would be tolerated amongst a heavily armed citizenry like you have in the US? This is a good time to thank whatever it is you pray to for the Second Amendment. It safegaurds all other rights.

The president is following the law. The real law, not your fantasy version.

Even if it weren't a time of war
FISA wouldn't have to be followed. Congress can't restrict a presidents constitutional powers, merely by passing a law. The only way to do that is to actually change the constitution.

Check the constitution
The president does not have the power to declare war. He can call the campaign against terror a war, but that does not make it one.

You are tapdancing around the question that given the rationales advanced by the White House, it's difficult to think of any action the President could take which couldn't be justified using the same reasoning. His lawyers have argued laws against torture, artibitrary imprisonment and wiretapping don't apply because he says they don't. No, we aren't yet carrying out massive arrests and executions of Americans. But the exact same justifications could be used. Clearly it doesn't worry you that the President is behaving as if he were above the law. Let us just say that others equally patriotic feel diffeernetly.

>Just look at the uprising against detaining terrorists, feeding them well, and playing Barney music for them

Please turn off your A.M. radio and read what's actually happening. Go to the Amnesty Internationla (SHamnesty) topic. But you've already been there and ignored it.

You'd be really surprised
The president's constitutional powers don't include a provision that enables him to ignore the fourth amendment:

>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What about the word "warrant" don't you understand?

He didn't ignore it, it doesn't apply

congress declared war

contract wa a scam
The "contract" was a scam. Why? Because the Rs never intended to make good on it. Why not? Because the House is known for passing goofy legislation knowing that the Senate will shoot it down.

The Rs never suspected that they would win the Senate. They could have passed legislation regarding every proposal in the "contract" but did not. The Rs excuse? "The president would veto it."

The Rs have never passed any legislation that impeeds the Ds agenda. Just the opposite. The Rs pass legislation that the Ds would never dare to introduce. The Rs and Ds are a smooth working team.



Congress authorized military action
That is not a declaration of war.

The fourth amendment doesn't apply???
Nor any of the other 9, if the President says so. Is that the way it works?

Felonious behavior is a prerequisite for service in Congress
The article states:

"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"

Obviously, this is not the case today. The business of Congress is a continuous stream of bribes and felonies where Congress steals from the citizens and gives the loot to its friends and supporters. One need look no further than Congress' refusal to outlaw 'earmarks' than to see that Congress is, in the main, a collection of criminals concerned principally with empowering themselves and lining their and the pockets of their allies with taxpayer funds.

The acceptance of a bribe to further the power of and/or to enrich oneself should be a capital offense - punishable by death.

Lets get back on topic
Can we bring this discussion back on topic.

Is it legal for the FBI (part of the Executive Branch) go to a Federal Judge (part of the Judical Branch) and get a warrant to search the office of a Congressman (part of the Legislative Branch)?

If so -- why? If not -- why not?

Another way of asking the same question -- Is each branch of Government immune from the dictates of the other two branches?

there is no difference
Since your the self declared expert on declarations of war, what is the constitutional form that such a declaration must take in order to be valid?

Why is this executive overreach more significant than all the others
This White House has set new dimensions to the argument that the commander in chief is above the law. I don't know why this particular reach is more interesting than any other -- except that congressional republicans are actually resisting this one, instead of applauding it.

immunity
The constitution says that a congressman can't be arrested on the way to a vote, except for (I think) treason, felony, or breach of the peace.

There's nothing in here about protecting congressmen from being investigated for a crime.

Executive priviledge is not an alegory here, because executive priviledge only covers the normal workings of the White House. As was shown during Watergate and WhiteWater, it does not extend to actions that involve crimes.

If a judge determines that there is probable evidence of a crime and that there is cause to believe that evidence exists regarding that crime, then the evidence must be turned over. Even if you are the president, or a member of congress.

eric has set new lows for beating dead horses
It's been shown over and over again, that your contentions have no basis in reality, yet you keep repeating them.

I guess you are impressing yourself and your mother.

Can you possibly post on topic?
You make one-sentence statements with no relation to fact. When challenged you respond with non-responsive insults.

>It's been shown over and over again, that your contentions have no basis in reality, yet you keep repeating them.

look in the mirror and you'll see who you're referring to.

And none of this is controversial, except
Material has been subpeoned repeatedly. In this case the FBI, for the first time in American history, came physically in and seized material. Repeat: 1st time in American history.

OK, let's say there is no difference
The existence of hostilities still does not give the President authority to violate the provisions of the bill of rights, or to unilaterally say that laws passed by congress no longer apply. He could do this if he were dictator. As president, it would seem he can't -- otherwise, what's the sense of having Congress, or a bill of rights?

This was a good article, no one should be above the law in general…
But there are certain duties and provisions, especially for the President, where the law doesn't always apply. So far, I haven't seen anything this President has done that rises to the grounds of "illegal" under those exceptions and provisions. I will admit, he skirts the like on some issues (wiretapping is just one) and I don't agree with some of the positions he has backed (The patroit act is one) but, all-in-all, I'm still glad he is in the Oval Office and not Gore or Kerry.

Eric also believed perjury was okay
I'd say Eric has a problem since he believes only certain crimes need be enforced. He believed that perjury wasn't a crime when Clinton commited it and remains the only president to be disbarred. On the other hand he calls for the president to be prosecuted for fantasy crimes. If there are any charges which the president could be brought to trial for somehow I doubt there would be so much silence on the part of the legal system.

That's why you are searched everytime you board an airplane
You don't understand the Constitution do you?

The GOP shouldn't sink to the level of the Party of Jefferson
The GOP, at all levels, has declared itself to be above the law that governs the average citizen. Only Gonzalez and his staff have shown the right stuff. No Congressman should be free to ply his trade (the taking of bribes and commiting high crimes) because of a supposed sanctuary that does not exist.

We see the culture of corruption on display not5 by the taking of bribes but by the permanent display of "I am a Congressman and don't have to obey the rules." This breeds contempt for the rest of us and gives Congressmen the illustion they are our masters rather than servants.

Are we to extend free 90 grand ice box priviledges to Congressmen; free slapping the police; free drunken driving get out of jail cards forever? Are we to ignore allowing jobs, free vacations, free loans to be extended to members of the Congress and their families and then be told this is their priviledge?

It is a disgrace that the Republicans can sink to defend Jefferson's actions and can only cause one to connect the dots. Why should innocent Congressmen who are honest seek special priviledges that makes them immune from the same laws the average citizen is subject too?

Its time for a change.

Its time that all laws be applied equally.

Its time for the Congress to be subject to the same pension and insurance progarms they give to all other federal workers.

Its time to end the rule of corrupt, professional politicians and their staffs that aid and abet them.

Beating dead horses
What else can you do when you have nothing to say and your education precludes intelligent comment?

the 4th ammendment doesn't apply to non-criminal cases
The supreme court has ruled that way for years.

he's not
He's not violating the constitution.
Why do you believe that Congress has a right to violate the constitution?

It was also the first time they needed to.
Jefferson had been given the supeana 8 or 9 months ago.
He refused to turn over the data.

When his house was raided, he was caught trying to hide documents that were covered under the supeana.

How many people want to bet that eric would be on the other side of this case if a conservative Republican were getting raided?

There have been a multitude of SC cases that show,
that the president, as commander in chief of the military has authority to engage in spying, without getting warrants.

The evidence gathered in this fashion generally can't be used in a criminal case, but the spooks in general don't want this info revealed in court anyway. (Discovery also gives the defense the right to examine how the data was gathered.)

Remarkable, they ignored felons for this long?
Just goes to show what kinds of crooks work on capitol hill. And we've had people like Barney Frank running prostitution operations out of his home. We've had crooks like Cunningham and Jefferson taking bribes. AQnd they will treated as if they were above the law?

And Eric protests?

I'm in agreement
There are national security issues that should be respected. I also think you can't charge the president for crimes (wiretapping for example) in this type of national security environment. If an American is charged due to the process, then things change. In that case, all has to be revealed to the defense and, eventually, the world in my opinion. The government needs to be careful how this information is used if they want to keep the process secret.

The Senate went through that
He was acquitted. Live with it.

If you have something to say on topic, say it
But you can't. The last time you did that, you wound up going into a crouch where you refuse to post anything except your nonsensical "res ipsa loquitur."

What would be such an occasion?
He's added signing messages saying he's not obliged to obey laws Congress has passed to hundreds of bills.

Assertion is not proof
You say he's not violating the constitution, even though actions he's take violate the letter of the law -- but you say the issue is whether "Congress has a right to violate the constitution."

In your universe, black is white. Thank you for sharing.

source it
thank you

source it
thank you.

What about the term "unreasonable" don't you understand?
You don't undertand the Constitution, do you?

Res ipsa loquitur

Clearly you haven't
I asked a question ace and you can't answer it as usual.

He was impreached live with it & disbarred
The only president to be so treated. He also had the most corrupt and convicted administration in US history. Yet we see Eric beating the same dead horses.

When chimps attack
Google it moron.

When moonbats attack
Mark nice post but I truly loved Eric's response! From a moonbat who never sources anything and makes beating a dead horse his national past time he can't deliver a logical response except source it.

I think Hampton and Michael MOORE had a hot date in the back of a chevy and produced Eric.

Oh, please
If someone buys an air ticket (to ride in a private vehicle) they do so with the explicit understanding that, post 9/11, their persons and effects will be searched, a procedure that has been found 'reasonable.' This is public policy openly arrived at that has and will continue to be upheld by courts, and endorsed by Congress in funding for special police. If you disagree with it and think it violates the fourth amendment, by all means file suit.

source it
You asserted it: you provide the back up.

Intellectually bankrupt again
so back to the r.i.l. crouch.

Tell us about the 4th amendment again
Exactly ace. One does not require a warrant for every search and as you have said in your comment which nicely frisks your prior statements the courts do not require their permission or warrants in all situations.

Too bad you cannot focus consistently or apply logic consistently or you wouldn't have made such ridiculous assertions before.

Res ipsa loquitur

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