Friday, June 02, 2006

Congress and Justice Dept. May Both Be Overreaching

NYT reported In the search case, there is broad academic consensus that the constitutional protection for Congressional speech and debate does not extend to evidence of criminal conduct, even if it is in a Congressional office.

And 86% of Americans agree.
That means the Justice Department was probably entitled to seek — and a federal judge probably correct in authorizing — a warrant to search the offices of Representative William J. Jefferson, Democrat of Louisiana, notwithstanding objections by leaders of Congress.
There is no "probably" about it.
But having the legal power to conduct a search of another branch of government does not mean it is a wise or prudent thing to do. No other administration has ever done it.
The police have never searched my house with a search warrent either. Does that mean that they should not consider it, if they should have enough evidence to convince a judge that they should be allowed to do it?
In ordering a 45-day cooling-off period, during which the solicitor general will hold the seized materials, President Bush seemed to allow time for reflection on the difference between what the executive branch may do and what it should do.
Actually he just gave the Speaker a chance to recover his sanity, and to allow the people time to let their congress critters know what fools they were making of themselves.
At the same time, Congressional leaders may have overreached in describing the search as a flagrant violation of the Constitution.
Indeed, the argument that Congressional offices are immune from law enforcement searches has something in common with the argument that the president has the authority to reinterpret the bills he signs into law, said Douglas W. Kmiec, a law professor at Pepperdine University.
He has not done that. His signing statements just state his view, as "legislative intent" shows the legislature's view, should the judicial branch need to review a law.
"They have no taproot in the constitutional document," Professor Kmiec said of arguments. "They're all sound and fury." Several legal scholars went further, saying they found it hard to take at face value the objections of many legislators about the search of Mr. Jefferson's office.

"Like a lot of these issues where separation-of-powers rhetoric is deployed and where you see cross-party lines of agreement, there's often a competing story," said Daryl J. Levinson, a law professor at Harvard. "Here the story that leaps out at you is that the Republicans are worried that they're next."
They they need to make sure they dont do anything wrong. If there is nothing to find, they should not fear a search.
The judge who authorized the warrant in Mr. Jefferson's case, Thomas F. Hogan of Federal District Court in Washington, will hear arguments on June 16 about whether to order the materials returned. Judge Hogan has in other contexts been unsympathetic to claims of privilege, having last year ordered the jailing of Judith Miller, then a reporter for The New York Times, for refusing to testify about a confidential source.

Mr. Jefferson and many of his colleagues on both sides of the aisle have said that the speech-and-debate clause in the Constitution should have barred the search. The clause says that members of Congress "shall not be questioned in any other place" about "any speech or debate in either house." The courts have interpreted the clause broadly. Information concerning almost all legislative activity, including stolen documents received from a tobacco whistle-blower, for instance, have been held to be protected. But materials concerning activities unrelated to the official legislative process are not subject to the privilege (bribery being an obvious example).

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