Replies

He goes to and from Congress when it's in session and NO ONE has raided his office. If he needed to be imprisoned for a length of time, I'm sure Congress would vote to expel him.

I assume "he" above is Patrick Kennedy. he got wasted and crashed his car. He's no Wilbur Mills (and Mills wasn't kicked out of Congress -- he was voted out). Point is, he was not immune from prosecution. If he had immunity, he could have told the authorities to pound sand. He pleaded out instead.

A lot of legal concepts that are relevant to this debate are only inferential in the main body of the Constitution.

Recall the Framers didn't really think they needed all that much detail about personal privilege and right in the body, and only reluctantly agreed to amendments where some of it would be spelled out.

The Bill of Rights wasn't a part of the Constitution as originally drafted, but a lot of delegates in a lot of states would never have voted to ratify without the promise that it was on the way. Even with that, there were some Founders who were staunchly anti-federalist, notably Patrick Henry of Virginia. You know how we lament that the government has exceeded its constitutional authority? Henry thought the Constitution gave the government too much power from jump.

Their theory was that common knowledge and usage would be enough to illuminate individual rights, or even institutional rights. Notice that we get references to "persons, houses, papers, and effects" in the 4th Amendment, but not in the body.

We're munging issues here. The issue I have with the search of Jefferson's office has nothing to do with Jefferson's individual rights. They had already searched his home(s), and had a warrant signed by a judge and based on probable cause. The requirements of the 4th amendment were met.

The issue in the search of Jefferson's office isn't the government against an individual, but one branch of government against another.

Imagine for a moment that US Marshals waltzed into the White House and started searching without so much as a how-do-you-do. That would be the judicial branch steamrolling the executive. When the FBI raided Jefferson's House office, that was the executive steamrolling the legislative.

Still, there's no doubt whatsoever that the Framers would have understood that seizure of a person was not held to be more sacred than the search of a house, papers, or seizure of effects", nor vice versa.

I'd go farther. The Founders chose to explicitly protect persons, homes, papers and property in the 4th Amendment. Words, writings, beliefs and associations in the 1st. Unwanted intrusion into their homes in the 3rd. They did not predict, and could not have predicted, wiretaps and surveillance cameras.

This raises the sticky question of whether you're a literalist or an originalist. The Framers enumerated limits on every intrusion into personal privacy they knew of. I think it was pretty clear that they meant to define a broad general general right to personal privacy.

It's been argued here that since all the FBI went after were "papers" and not Jeffeson's body, it was all OK.

That has certainly not been argued by me. I believe quite the opposite.

Yet, no one went after Patrick Kennedy's papers and effects in his congressional office. Might be some good stuff in there you know, like cocaine, heroin, uppers, downers, bennies and other controlled substances.

There might be gold bouillon, ten kilos of plutonium or the mummified corpse of Jimmy Hoffa. "Might be" is not the relevant criterion for a search warrant.

So, we might ask why the AG thought fit to raid Jefferson's papers in his office and not Kennedy's. Or, did the AG (or his agents) actually try and ended up with the Speaker not giving his approval.

Jefferson was under investigation for corruption-related felonies. A prosecutor argued, and a judge agreed, that there might be relevant information in papers in his office. Kennedy plead guilty to a traffic offense. No one argued, and I don't see how they could, that anything in his House office could be relevant.

I think the raid on Jefferson's office was badly handled. Probably illegal, when it could have been done legally. But I'm not sniffing around for preferential treatment -- the Jefferson and Kennedy cases weren't treated the same because the cases weren't similar.