Posted on 05/28/2006 6:35:29 AM PDT by MNJohnnie
WASHINGTON — The constitutional showdown that followed the FBI's search of a congressman's office came down to this: The House threatened budgetary retaliation against the Justice Department. Justice officials raised the prospect of resigning.
That scenario, as described Saturday by a senior administration official, set the stage for President Bush's intervention into the fight over the FBI's search of the office of Rep. William Jefferson, D-La., an eight-term lawmaker being investigated on bribery allegations.
During contentious conversations between the Department of Justice and the House, top law enforcement officials indicated that they'd rather quit than return documents FBI agents, armed with a warrant, seized in an overnight search of Jefferson's office, the administration official said.
Until last Saturday night, no such warrant had ever been used to search a lawmaker's office in the 219-year history of the Congress. FBI agents carted away records in their pursuit of evidence that Jefferson accepted hundreds of thousands of dollars in exchange for helping set up business deals in Africa.
After the raid, House Speaker Dennis Hastert, R-Ill, lodged a protest directly with Bush, demanding that the FBI return the materials. Bush struck a compromise Thursday, ordering that the documents be sealed for 45 days until congressional leaders and the Justice Department agree on what to do with them.
(Story continues below)
(Excerpt) Read more at foxnews.com ...
WE as a people have formed a Civil Government. That Govt is structured so it has 3 branches. Executive, Judiciary and Legislative. All three are STILL members of our Civil Society. They are NOT some how magically promoted to some form of superior level of citizenship based on the office they hold. They are citizens first, office holders 2nd. Based on that principal, they are subject to all the same laws and rules as any other citizen. They system is so structured so that the other branches serve together as a check on the third.
Unless you have been taking serious hardcore drugs recreational for decades, you know the authority of the Executive has been largely pruned back by the Judiciary and the Congress since Watergate. They are use to getting away with it.
So Congress wants to expand its power once again. To claim it is NOT a Co equal branch but the SUPERIOR branch of Govt. That it cannot be in any way called to account by either of the other two branches. Utter nonsense.
No one is above the law. NO one. A legally executed Warrant is NOT magically prohibited from being served on a Congress-critter simply because Congress critter proclaims themselves above the law. To do so would violate the Equal Protection Clause. The Congress critter are a citizen. Subject to the same rule of law as any other citizen. To argue any other way out of some misplaced notion of "preventing future maybe abuses" is nonsense as well. Law does NOT work on the bases of "What if" it works on WHAT IS. What IF your What if NEVER happens? We deal in what IS, not What IF.
"Anyone who made such a threat from the vantage point of office in Washington, D.C. would seem to be guilty of several major crimes. Threatening a law enforcement body with retaliation must be a violation of criminal law. If successful it could be obstruction. It would also seem to be interference with the investigation of a felony. Charges should be brought regarding applicable violations."
Not by the elected body that passes the laws they are charged to enforce and provides the oversight and supervision of their activities.
When the public came before Congress and testified to abuses by the ATF years ago legislators responded by demanding many changes to the conduct of the ATF (some which happened some which didn't) The Congress was not "Threatening the ATF" they were providing legitimate oversight and direction to an entity they created by funding it and charged with the enforcement of laws their body passed. They were representing their constituency (us).
This is why this issue is so serious. If this search and seizure of documents by the Executive Branch from offices of the Legislative Branch using as the authority subpoena powers of the Judiciary is allowed to stand. It represents a major power shift.
We are so far ignoring the Judiciaries role in this, they are well aware this is precident setting. This is a far reaching power play by them as well.
It will only be a matter of time when a different and less ethical Executive branch uses that power to intimidate, suppress or seize outright evidence of it’s own wrongdoing under the guise of conducting a criminal investigation.
Keep asking yourself.
WWC&RD (What would Clintoon and Reno Do?:)
Yikes!!!
Wm
Wrong! It also says you cannot arrest them during their attendance at the session of their respective Houses EXCEPT if they have committed treason, felony and breach of the peace.
"You are invoking a "Right" that is NO way involved IN this matter. No one prevented the Congressman from doing his job. His office is NOT a sanctuary where he can hid from the rule of law simply because he is a Congress critter. Equal protection Clause? Heard of it. You are claiming special privileges for Congresscritters. That nonsense."
I DID NOT and I AM NOT. This is what I said in my previous posting. I quoted Section 6 and highlighted part of it in my posting you are replying to:
Section 6. 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.
I then said:" If I read this correctly they CANNOT be arrested in their respective House or to and from EXCEPT for treason, felony and breach of the peace. Which in my book just about covers most crimes except petty ones so I would say they could be arrested in the House (adding) coming or going to and fro if they have committed any of the above mentioned crimes.
Now after you have read what I said again do you want to tell me how I was involking a "Right" and claiming special previliges for congresscritters? I said nothing that isn't written in Section 6 of the Constitution.
How is one corrupt tyrant in the White House different than 535 tyrants in Congress? Or some lessor number but still a majority?
There is more than one danger to be guarded against here. That's why I while I applaud this action, I would have condemned it if a search warrant from a Federal Judge had not been obtained. The Judge clearly, by the procedures required to serve the warrant, considered the issues of separation of powers, and the Speech and Debate Clause. He acted correctly, the executive branch acted correctly. The House has its collective nose out of joint, but they are not in the right in this case.
"Thx for doing the lookup. The post was so ridiculous I didn't bother."
Choosing to pretend I am defending the individual elected official from arrest is just silly. I am not and I have said so repeatedly.
Previously I stated
“I also think there are plenty of ways for the Enforcement folks to acquire evidence of wrongdoing or corruption of our elected officials without 'Crossing the Rubicon" rifling the files or entering the offices of our elected officials.
Jefferson’s guilt or innocence is irrelevant. This is not about one elected person. “
Further I pointed out that there are ways to obtain documents from the offices of the House Thru the Speaker and the House Ethics committee.
This whole affair has been going on for some 7 months since the Justice Department requested the documents. So beyond a power play what was the reason the Justice department felt compelled to break a 216 year old precedent?
Come on please be serious, where you can educate me, show me I am wrong I lose nothing but gain understanding so I appreciate you efforts. This from my perspective for now still remains a power play plain and simple.
Quoting chapter and verse regarding a point I readily concur with you on (that they may be individually subjected to arrest for certain criminal misconduct does nothing to
address the issue and objection I am raising.)
The objection is to members of the Executive entering and seizing documents from the Offices of our Legislative Branch period.
I am not claiming individual House Members have blanket immunity from arrest or should have. Speaker Hastert (no friend politically of Jefferson that I know of) is not either.
His objection is essentially the same as mine.
It is the entering and seizure of documents by the Executive Branch from the offices of the Legislative Branch that is at issue and all it portends that I have constantly objected to here.
To pretend I am defending Jefferson or any individual elected official or trying to protect them somehow from prosecution is not correct and you know it.
I will readily agree their offices are not sacrosanct either nor should their offices serve as a place to hide evidence of wrongdoing. However I have articulated some very good reasons this search and seizure should not have happened. That it has not happened before in 216 years should give conservatives pause. Why is it happening now? Is Jefferson the first suspected crook in the House or Senate or first one prosecuted?. I think not.
W
Well El Gato
At least we are talking about the actual issue and event that occured the seizure of documents from the offices of the Legislative by members of the Executive. Not the legality of the non-arrest of Jefferson or if an Elected Official can be arrested (they can).
"How is one corrupt tyrant in the White House different than 535 tyrants in Congress? Or some lessor number but still a majority?"
Getting the House to act as some sort of collective tyrant I think would be pushing the envelope as they agree on little under the best circumstances and have no immediate enforcement capability unlike the Executive.
I do think we as a nation were dangerously close to having a tyrant in the former Clintoon era. Set aside the Lewinsky affair. We had a Justice Department running roughshod over people all over the place. Actively defending the President and attacking his opponents. Ignoring the law when it suited as in the Elian Gonzalez case and many others. Using the Military overseas to divert attention from events at home and even ordering the Military to side with those in Bosnia who are and were our enemies. Vice Presidents recieving money from Chineese interests thru Buddist Monks. The list is goes on and on. Given this new found power to enter the Legislatures Offices, siezing records as you have alluded to also you do see the potential dangers of abuse. I am not sure the Impeachment would have occcured.
"There is more than one danger to be guarded against here."
I agree. There is no doubt there are elected officials and members of their staff who do not have the best interests of the American people at heart. Perhaps even seek to harm this country.
It is a delicate balance and I am not sure I am comfortable that the Judiciary fouled up and politically driven it is up to the task.
Can we really count on the Judiciary to limit this sort of activity or will we begin seeing it more and more. That is the concern I have. What is the threshold? What is the standard?
Remember it is the Judiciary that works with the Executive, the Justice Department to prosecute.
They are already uncomfortably close.
I see your point with regards to the Judiciary and like Hastert I am not happy about it but at least we are now on the same sheet of music and talking about the same thing. The event that actually occured.
W
Jefferson's pleas and the search warrant application are here BTW: http://www.scotusblog.com/movabletype/archives/2006/05/the_hill_search.html
"FBI agents barred both the House general counsel and the Sergeant at Arms from the rooms it was searching. "
http://www.chinapost.com.tw/editorial/detail.asp?ID=82968&GRP=i
Lawyers tend to see this strictly legally (of course!): that as long as the privileged records aren't used in court it's OK to look at them if you have a warrant.
But the Debate Clause is different from any other legal "privilege" ( none of the others are in the Constitution) and has a very different purpose than the others.
I think you'll find that slightly stricter protocols such as I laid out in post 251 will come of this, and it will be a good thing.
Curiouser and curiouser. I would have expected the President to back his appointees to the hilt, instead we get this 45 day sequestration of the "take" from executing the warrant. Senators, who one would expect to defend Congressional privileges, instead support the "raid". Something strange going on behind the scenes with this one?
Per Gravel "those things generally said or done in the House or the Senate in the performance of official duties " are privileged by the Speech and Debate Clause. Those are the "legislative acts" it protects in the SCOTUS's eyes.
No one is arguing that the prosecutors aren't entitled to the evidence they want (except the perp of course) just over what procedures they must take in searching for them in the privileged papers they were hidden in by Jefferson.
It's not just a legal issue but also a political one. (Thanks again for the rely to my legal procedure question.)
Projecting a motive that doesn't exist is known as a strawman.
“I also think there are plenty of ways for the Enforcement folks to acquire evidence of wrongdoing or corruption of our elected officials without 'Crossing the Rubicon" rifling the files or entering the offices of our elected officials.
Further I pointed out that there are ways to obtain documents from the offices of the House Thru the Speaker and the House Ethics committee.
As if Nancy Pelosi would have authorized an investigation of Mr. Jefferson.
No dice.
Jefferson’s guilt or innocence is irrelevant. This is not about one elected person. “
I don't care about that. I regard the checks and balances in current law as sufficient. I want crooked representatives from EITHER party in jail for the rest of their unnatural lives.
This whole affair has been going on for some 7 months since the Justice Department requested the documents. So beyond a power play what was the reason the Justice department felt compelled to break a 216 year old precedent?
Cunningham's home was searched.
The objection is to members of the Executive entering and seizing documents from the Offices of our Legislative Branch period.
As far as I am concerned, the check on executive power is the felony of abuse of power, which in this case would be searching and reading documents outside the scope permitted by the warrant. That means there are TWO branches necessarily involved, and NOT a simple execution of search by the executive, as you state. The checks and balances thus remain intact. Further, if the warrant is cooked up, the legislative branch has the power to impeach the judge. Thus the legislative check is on BOTH of the other two branches when a such a warrant is executed.
That's plenty of protection against abuse.
Speaker Hastert (no friend politically of Jefferson that I know of) is not either.
His objection is essentially the same as mine.
No doubt, the extreme likelihood of skeletons in the closet being as it is. It rings awfully hollow.
I do considerable research on corruption in government. Consider this example, or this one. Corruption has been rampant since before the ink was dry on the Constitution. Anything that makes legislators who have been selling us out for two centuries fear the retribution of the law could do nothing but please me.
The real fear you haven't expressed is what might happen if the executive fraudulently concocts documents upon which to build a case. The fact is, there isn't anything to preclude that now.
To pretend I am defending Jefferson or any individual elected official or trying to protect them somehow from prosecution is not correct and you know it.
Show me where I said that you were.
That it has not happened before in 216 years should give conservatives pause. Why is it happening now?
First of all, I seriously doubt this is a fact. Second, if it isn't, it's high time.
Is Jefferson the first suspected crook in the House or Senate or first one prosecuted?. I think not.
As I said, we are WAY overdue for a major housecleaning in Congress.
Thanks for the link. I think you are correct about the eventual outcome. Along with Congressman Jefferson spending some much deserved quality time at Club Fed of course. Hopefully along with a bunch of other involved Congress Critters, staffers, "lobbyists" etc. For I doubt very much this was a solo affair.
The House Counsel is typically more aggressive in opposing prosecutorial inquiries than the Senate one.
You're confused. They're not immune from prosecution, and nobody's making such a claim. They *are* immune from having legislative documents searched, seized, investigated, and/or used as evidence in a court of law.
No, they didn't. They put exceptions into the Privilege from Arrest clause:
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;They didn't put exceptions into the Speech and Debate clause:
and for any Speech or Debate in either House, they shall not be questioned in any other Place.Two separate clauses. The semicolon is there for a reason.
True, although that entire part of Art 1 Sec 6 is, AFAIK, apparently, from the context of quotes from Congressmen, referred to as the Speech and Debate clause. Both provisions.
Since no one is questioning anything Rep. Jefferson said in a speech or a debate, I assumed that references to the Speech and Debate Clause, as both Pelosi and Hastert said in their statement (reported by CNN) that Saturday's FBI search violated the principle of separation of powers and the speech or debate clause in Article 1, Section 6 of the Constitution ( referred to both provisions (formal grammatical clauses as indicated by that semi-colon as you indicate) of the second sentence of Art. 1 Section 6.
But if they were only referring to the second clause of that second sentence, then I'd say that the Speech and Debate clause is not applicable to this case, and thus bringing it up, is a red herring.
The Supreme Court stated in Brewster that: "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 . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman's influence with the Executive Branch."
Congressman Jefferson is toast, as are any confederates he might have the affair, in or out of Congress. The "Privilege from Arrest" and "Speech and Debate" clauses both remain inviolate.
bttt
"With their misplaced prosecutorial overzealousness the Justice Department has now compromised a perfectly legitimate investigation and allowed yet another DemocRAT to escape the consequence of his mischief and mayhem."
I am not so sure about that. The Justice Department was doing their job. That does not mean that Jefferson's case is lost or won. It also does not mean that the Justice Department was overzealous, nor that their prosecutorial stance was misplaced.
"How many times have you misdialed a number? All you would have to do is misdial a number that belongs to someone who had dialed a Muslim number, and is under watch. Or misdialed a number that was someone's who misdialed a Muslim number that was under watch."
From my understanding, if this were to happen, it would require a warrant.
From what I have seen, the way it is determined to capture phone calls, is if the phone number is known because it was captured from Al Quaeda. If both numbers are known al Quaeda number, the call is captured. If both numbers are outside the US and one number is a known Al Quaeda number the call is caputured. The only way that the scenario you posed above could be captured without a warrant is if you accidentally call a known Al Quaeda number while you are out of the country. Yes, it is possible, but extremely unlikely.
The budget bomb is big. Not even the Supreme Court has been known to reverse a budget bomb.
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