Posted on 05/24/2006 2:55:15 PM PDT by Wolfstar
This thread invites all FReepers to engage in a Constitutional debate on this question: Is House Speaker Dennis Hastert correct or incorrect in his interpretation of the relevant Constitutional clauses as they pertain to the FBI raid of Rep. William Jefferson's offices in the Capitol?
PREMISE: As conservatives, the one thing we should most try to conserve is the United States Constitution. In order to do so, we need to understand it. The raid on Rep. William Jefferson's Capitol office by the FBI is a very rare case, and it raises extremely important separation of powers questions.
Please try to debate the merits of the Constitutional issues only. Rather than an all-too-common tendency to jump to snap judgements about the individuals involved, we have a golden opportunity here to raise our sights higher and educate not only ourselves, but all those lurkers out in "internetland" as to this unusual case. We are all accustomed to the Legislative Branch investigating the Executive Branch, and probably give no thought to the Constitutional underpinnings (if any) of such investigations. The Jefferson case is an unusual turnabout, and Congressional leaders believe it violates the doctrine of separation of powers. Are they correct?
Here is the Speaker's stated concern: (NOTE: Click the above link to read the Constitution for yourself if desired.)
In the Speaker’s lengthy statement, Hastert [said] that the seizure of legislative papers, no matter how innocuous, was a violation of the "the principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech and Debate clause of the Constitution."
Here are the relevant Constitutional clauses:
The Constitution of the United States
Article. I.
Section. 5.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Section. 6. [NOTE: Contains the Speech and Debate clause to which Hastert refers.]
The Senators and Representatives...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.
Article. II.
Section. 3.
He [the President] shall take Care that the Laws be faithfully executed.
Article. VI.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
We have a golden opportunity here to educate not only ourselves, but all those lurkers out in "internetland" as to a rare and very important Constitutional separation of powers question. Normally, all we see is the Legislative Branch investigating the Executive Branch. The Jefferson case is an unusual turnabout.
By the way, there is not a single word in the Constitution authorizing Congress to investigate the Executive Branch, yet Congress does so very frequently and at will.
Just pinging a few friends, FYI, to a debate on Constitutional separation of powers.
Great idea! marking for later read.
Depends what the meaning of "is" is.
Since the congressman was suspected of felonies, I'd say the Executive Branch was within their right to gather evidence from his office.
I honestly don't believe that we have enough information without knowing what was seized. From the way Hastert is reacting, documents pertaining to the business of Congress were seized (or he thinks they were.) Jefferson probably is claiming things were seized that were not. Though a Dim would likely say that anything on his stationary is protected.
You haven't included any of the Eminations from the Penumbra of the Constitution.
PS: Thanks for posting this thread, I'm sure it will be a good one. =)
Bribing a congressman is a felony. Case closed.
:)
In my opinion, the answer is no the question of to whether or not Haster is right, but I'm hoping FReeper lawyers and others more versed in Constitutional issues respond.
I don't see anything in the Constitution that authorizes the Congress to investigate the Executive or, for that matter, private U.S. citizens. Yet they do, and I don't know what authority underpins their investigations.
What does that leave? Spitting, j-walking, and parking illegally?
Then why hasn't he been arrested?
I don't think you will find specific language in the Constitution to answer this question one way or another.
Article I Section 6 is about as close as you get but that is about arrest, not search and seizure.
I think the answer lies in the doctrine of separation of powers, which is more implied than stated by the Constitution, and therefore -- it's a coin toss and the SC will toss the coin, and call heads or tails, and tell us who wins.
I don't think you will find specific language in the Constitution to answer this question one way or another.
Article I Section 6 is about as close as you get but that is about arrest, not search and seizure.
I think the answer lies in the doctrine of separation of powers, which is more implied than stated by the Constitution, and therefore -- it's a coin toss and the SC will toss the coin, and call heads or tails, and tell us who wins.
To the extent that I understand the relevant sections, I agree with you. Hastert bases his objection on the Speech and Debate clause, but I don't see how it applies.
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality [418 U.S. 683, 713] in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
This is very, very simple. And it's not about the meaning of "felony."
It's about whether searches of congressional offices are forbidden. They aren't. Arrest and questioning are both things that can prevent congressmen from voting or speaking, i.e., from conducting their major business, at times of congressional action. The Constitution simply says that the executive branch cannot disrupt a congressman in that narrow sense. It does not say that he can hide anything he wants on congressional property, confident that the law can never reach it. What nonsense.
The other three clauses cited are irrelevant.
The FBI did nothing wrong, and Hastert is a blustering fool.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
This section deals only with the Member's behavior as a member of the House. The House determines it's own rules of operation and can expel Members for breaking those rules. The Jefferson case does not deal with violations of House rules and therefore does not apply.
Section. 6. [NOTE: Contains the Speech and Debate clause to which Hastert refers.] The Senators and Representatives...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.
Jefferson was not arrested, nor was he questioned outside of the House, to my knowledge. But even if he were, it would fall under the Felony exception to the rule.
Article. II. Section. 3. He [the President] shall take Care that the Laws be faithfully executed.
Irrelevant in this context since no rule or law was broken.
Article. VI. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
This clause is irrelevant, again, since no other Constitutional provision was violated. However, it might be wise to send this particular provision to each Congressman and Senator on a regular basis!
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