I'm trying to think why I haven't posted on the search of Representative Jefferson's congressional office. I've been eyeing it from a distance, feeling insufficiently outraged at the intrusion or hot to defend it. But I see
Adam Liptak has some analysis today, quoting various lawprofs, so let's take a look:
The Justice Department is probably correct in saying that it was legally entitled to search a congressman's office last month. But in ignoring history and established conventions in that case, some legal scholars say, the Bush administration has again unsettled widely shared understandings of constitutional relationships and freedoms that have existed for generations.....
[T]he 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.
"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."
Does it bug you that when reporters ask lawprofs for a legal opinion, they get a political opinion? But that really does reflect the way many (most?) lawprofs think about difficult constitutional law problems. Liptak ends his piece with a quote from Supreme Court Justice Robert Jackson that is always cited for this attitude:
"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government," Justice Jackson wrote. "It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."
"Workable government" -- it's a nice phrase, but what does it mean? Does it "work" or doesn't it "work" for the Justice Department to search the offices of members of Congress when it has probable cause to believe a crime has been committed? And do you like the answer to that question serving as the answer to what the Constitution means?
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I think that your blog makes the point fairly well that it isn't really the Constitutional provisions that are important here, but rather, long standing tradition. I doubt that the Speech and Debate clause is really going to stand in the way of a search warrant issued by the Judiciary and executed by the Executive branch, esp. when the FBI appears to have gone out of their way to address the issue of immunizing their evidence from legislative documents.
That said, there are probably a lot of things involved in the "back story" here. One possibly is that the House Republicans are apparently furious at the President for ignoring them on the immigration / border security issue. Their constituants don't want anything close to amnesty, but rather, just the securing of our borders and enforcing the laws already on the books.
I think this is basically a lot of fuss over not very much by people that have something to hide (or, as Bruce suggests, a chip on their shoulder). Q.v. my post here.
I think Kmiec is wrong (or at least, manufacturing a straw man) to compare the "the argument that Congressional offices are immune from law enforcement searches . . . with the argument that the president has the authority to reinterpret the bills he signs into law." The latter - which I take to be a straw man for signing statements, which I contemplated here) - clearly does have some kind of (admittedly implicit) rooting in the Constitution, while the former is a vast and unjustified extrapolation from a clause that cannot possibly support it.
Well, why does something have to have a "taproot in the ... document" to be constitutional law? That strikes me as a fancy way of saying the answer to the legal question isn't obvious. How many of the constitutional propositions we rely on most heavily have a "taproot in the ... document"? Lots of constitutional law isn't that textual, and lots of textual interpretations don't have a "taproot" -- a single, deep root.
I was somewhat taken aback by this quote: "As with the administration's assertions that it may ignore a law on domestic eavesdropping, reinterpret other laws through presidential signing statements and prosecute journalists under espionage laws, specialists in constitutional law and history said, the Justice Department's justification for the search is an aggressive use of executive power".
The obvious difference here is that the Administration has a lot better arguments about, for example, NSA surveilance of international calls, than does Congress in this. For example, see this amicus brief of the Washington Legal Foundation. As for prosecuting under espionage laws, it hasn't happened yet, but if it does, I see nothing that would make it illegal.
I'm wading into a legal discussion, to which I obviously have nothing to offer on the issues. I wanted to first note a new Congresional slogan I saw referenced on instapundit: Subpeonas: Too good for you, and not good enough for us. From the point of view of a regular Jane citizen, it seems as though the legislature and executive are both way beyond arrogant these days.
As a constituent of Dollar Bill's, I wanted to weigh in with my sincere hopes that this search stands up and the documents it turned up are used to bring him down, down, down, along with whatever family members are slurping with him at the trough. This would be a major step on Louisiana's struggle to escape the swamps of patronage and corruption.
OK. We are agreed that there is no constitutional issue here. The issue is "tradition." However, there is no tradition if this hasn't come up before and been resolved by deciding a search was inappropriate.
So I would like to know if this issue has come up before. I haven't seen it discussed, but maybe readers here can point to some earlier Justice Dept. proposal to obtain a warrant that got shot down, so as to create a "tradition."
I think DOJ was infinitely patient here -- and Jefferson was too clever by half to keep the money there and keep giving the FBI the finger. I hope he and Duke Cunningham cell together -- the discussions would be punishment enough for both.
Lawprofs and politics... it seems a majority of them see the Constitution as a political tool anyway so it seems more rare when a straight up legal analysis is given to explain a constitutional issue (or non-issue as I believe this is). The congressional office is to the Speech and Debate Clause as papal indulgences were to Scripture.
Our congress seems about as bloated as the Medieval/Renaissance Church.
Ann asks two interesting questions, neither particularly tied specifically to the issues about the propriety of the search of Cong. Jefferson's office:
1. Does it bug you that when reporters ask lawprofs for a legal opinion, they get a political opinion? But that really does reflect the way many (most?) lawprofs think about difficult constitutional law problems.
2. "Workable government" -- it's a nice phrase, but what does it mean? Does it "work" or doesn't it "work" for the Justice Department to search the offices of members of Congress when it has probable cause to believe a crime has been committed? And do you like the answer to that question serving as the answer to what the Constitution means?
As to 1, yes, it bugs me that professors are more interested in providing a political answer when a question calling on their supposed expertise is posed by the press. And I agree with Ann's observation that politics is where these press queries to professors quickly lead (I think it's why the reporters go back to the same professors, knowing they'll get a political jab instead of a legal answer). We got a heavy dose of that when the NSA issue first broke; only in the blogosphere did the discussion ever seem to move past politics to a real engagement with the legal issues (Volokh in particular was a good source for that kind of discussion.) The commentary in the MSM, particularly from professors such as Turley, Sunstein, Ackerman and others with a political ax to grind, were quite predicatable. I think a lot of that has to do with (a) the political monoculture that typies the American university -- certainly the elite campuses today -- where the profs are certain about who is right in the raging political controversies of the day and quite selfrighteous about their certainty; (b) a belief that professors, being smarter than the average Joe, are entitled to tell those Joes what to do and what's good for them; and (c) the (self-delusional) ability of some professors to see themselves appointed to high office, if only they can ingratiate themselves with the right political team.
As to 2, well, in this instance it clearly "worked" to have the Justice Department execute a search warrant on a legislator's office. There is no statute exempting Congressional offices from the normal reach of a search warrant issued pursuant the F.R Crim. Pro., and nothing in the Constitution addresses the matter (I put in my 2 cents on the legal issues in the thread at Volokh to which Simon linked, above). If Congress perceives a problem, they can legislate an exemption for themselves, or impose special limitations or procedures applying only to themselves, and can even override a veto if they feel strongly about it. And then they can face the wrath of the voters. I think that solution accords with the Constitutional design far better than any overly abstract notions drawn from separation of powers concerns.
As for the idea that "workability" should serve "as the answer to what the Constitution means," I have a problem with Ann's question. It would be nice if judges brought to bear in every case a healthy dose of common sense, and I see no advantage in exempting Constitutional cases from that principle. Obvously "workability" is an aspect of common sense, since a ruling that is "unworkable" doesn't seem to have much to recommend it in any context. And the Framers weren't a bunch of airhead logicians interested in the beauty of an abstract design for its own sake; government is at least as practical a business as, well, business. But issues about practicality or "workability" enter the interpretative picture after one has worked through the text and whatever else may bear on the interpretation of the Constitution provision or principle at hand.
I have not heard a convincing argument that this search was unlawful or unconstitutional from a law prof, a lawyer, or, indeed by a Congressman.
I have heard several arguments that this might have been a politically questionable move, touching primarily on comity issues.
Isn't it true that sometimes the "law" or the constitution does not answer all questions?
It hasn't been mentioned here yet, but I find it interesting that Jefferson was not on his own in defying the subpoena. Evidently, he was working with the House's counsel right from the start and he and his staff were advised that responding to the subpoena would undermine the prerogatives of Congress. Copies of all the materials subpoenaed were in the office of the House counsel and the House counsel was in discussions with DOJ.
I'm sure Rep. Jefferson found this welcome!
I'm sure there is even more back story to this, but it helps explain the strong reaction by the House leadership. It seems like DOJ eventually got tired of discussions/negotiations and acted.
This is not to say that I think DOJ acted improperly or that I agree with Hastert. But I am fascinated that this was an institutional issue at an early stage and despite negotiations it escalated to this level.
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