Posted on 05/25/2006 12:16:25 PM PDT by tsmith130
First off, I have to point out the hypocrisy of our legislators. Whenever they unilaterally decide Bush "owes it to Congress" to turn over sensitive materials that affect matters of national security, they whine and moan about "checks and balances" but now when the executive branch wants information from a congressman implicating him in a crime, it's suddenly immunized from scrutiny. I guess a congressman can break any laws he feels like breaking. As long as he's clever enough to hide all of the evidence in his office on Capitol Hill, the prosecutor will never be able to get his hands on the smoking gun. Gee, there's no double standard in forcing the president to "account to" Congress but not vice versa.
For those who don't know, the "speech and debate" clause in Article I, sec. 6 reads, in full, as follows "They [legislators] 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."
That provision says exactly what it sounds like it says(and case law is consistent):
1) legislators, barring treason, felony, or breach of the peace, cannot be arrested while attending a legislative session
2) legislators may not be forced to account for what they said during a speech or debate, and neither their statements during the speech or debate nor the way they voted can be used against them.
In essence, it protects 1) speech and 2) debate. It does not protect a legislator's "extracurricular" (for lack of a better term) illicit activities.
Jefferson was not arrested while at a legislative session, nor was he asked to answer for anything he said during a legislative speech or debate. There are not even any allegations that he accepted any bribes on the floor during any speech or debate, which arguably would make this a closer case. The protections in the "Speech and Debate" clause therefore do not come within a country mile of protecting against the FBI's actions here.
I am particularly troubled by the inflammatory characterization of the FBI search as a "raid." The FBI had a warrant. When the executive branch gets a warrant, it necessarily seeks a neutral and detached assessment by the judicial branch that the proposed search is proper and consistent with the law. Of course, Congress can't make the executive branch (and implicitly President Bush) look like a dangerous, imperialistic power unless they ignore details like that. And as long as Congress is in a self-aggrandizing mood, we might as well expect next week's drama to be a legislative enactment overturning Marbury v. Madison and the concept of judicial review.
As for Congress' gripe that this search was "unprecedented," that is the among the most woefully inadequate attempts at a legal rationale I have ever heard. Even if other presidents had an unwritten "gentleman's agreement" to wink and nod at criminal behavior, so long as the evidence remained buried on Capitol Hill, this president has no obligation to follow the other lemmings off a cliff. Nothing in the Constitution indicates that governmental powers are like muscles and "atrophy" from nonuse.
Despite the fact that the legal arguments that the executive branch did anything wrong are on weak legal footing, this is a fact scenario that has not arisen before. We can reasonably expect Jefferson to file a motion to suppress evidence in the event he is charged (I'm not sure if that has happened yet). It also would not be suprising if he started a lawsuit over this search. The forty-five day waiting period will allow the executive branch a reasonable amount of time to see what sort of legal challenges materialize. If the court does find that some of the documents were improperly taken (e.g. if there are copies of floor speeches) the executive branch will be able to tailor any subsequent investigation or prosecution to avoid use of those documents.
If this "wait and see" approach is what President Bush has in mind, then that is a reasonable strategy. By minimizing the risk that any protected documents will be used against Jefferson, the chance of tainted evidence poisoning the entire proceedings diminishes. Obviously, if Jefferson is convicted of wrongdoing, we want that conviction to stand, not to be overturned on a technicality.
Imagine this scenario: 1) Jefferson gets convicted; 2) A court later rules that some of the evidence was privileged or derived from such evidence ("fruit of the poisonous tree"); 3) Bush didn't seal the records and let the investigation go on; 4) As a result, the conviction gets overturned. Jefferson either walks free, or, best case scenario, assuming nontainted evidence can support a conviction, we have a mistrial and have to start the whole hubbub over again.
We all know exactly what the headlines would be: "Bush allows a charade prosecution; sets government up for failure," things of that sort. The American public is so fixated on inventing new conspiracy theories, he's damned if he does and damned if he doesn't. He might as well keep right on doing what he's doing: the right thing.
Grandmaw always said "the guilty chicken cackles loudest!"
Lot of cackling going on in Congress.
I hope someone can explain to me how this isn't depressing and reak of conspiracy?
Gee, when Bush was first in office, many of us wanted him to rescind some of Clinton's Executive Orders.
But what did he say? "Let's move on."
Sealing the Jefferson documents for forty-five days allows time for other corrupt members of Congress to destroy any paperwork that would be subject to Justice Dept., FBI, warrants.
The question here is was sealing the documents wise. I don't think that depends on anything that might have happened six years ago (I have no idea what the scenario was back then anyway).
Also, sealing the Jefferson documents only seals the Jefferson documents. If the FBI does not have access to other documents belonging to other legislators, it is because nobody bothered to procure warrants for those documents, not because the Jefferson documents were sealed.
If you have no idea of what the scenario was 6 years ago, forget I ever brought it up.
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