Redstate

By krempasky Posted in Republicans — Comments (37) / Email this page » / Leave a comment »

Since they're trying to keep everyone on the same page - figured it'd be good to share the page. Don't miss Dales' response fisking.

Separation of Powers

Talking Points

• This is not about Rep. Jefferson and his legal problems. The FBI has supposedly already found $90,000 in his freezer and that one of his staffers has pled guilty to accepting bribes. Even Minority Leader Nancy Pelosi has called for his resignation.
• We are not coming to the defense of Rep. Jefferson. We are defending the separation of powers among the legislative, executive, and judicial branches of government.
• For the last 219 years, the Speech or Debate clause has been upheld by numerous courts.
• The Supreme Court has stated repeatedly and unequivocally that when the Speech or Debate privilege applies, it is "absolute."
• Further insisting that,
  

  The guarantees of th[e Speech or Debate] Clause are vitally important to our system of government," [they must] be treated by the courts with the sensitivity that such important values require. - Helstoski v. Meanor, 442 U.S. 500, 506 (1979)

Oh please do read on...

• The spirit of the Speech or Debate clause dates back to the English Civil War.
• Consider the precedent set by these actions.

Imagine if Americans were to give House and Senate committees information or "whistle-blow" on the activities of the executive branch. And what if the executive branch were able, based on the precedent set last weekend, to "search" these offices? They could have access to the identities of the whistle-blowers and all of the details of their charges. Of course, the Justice Department can still use its subpoena powers to get certain documents.

How can the Congress carry out its responsibilities to the American people to carry out oversight of an administration or investigations of wrongdoing on the part of administration officials at the highest levels?

• This did not happen with the Abscam scandal.
• This did not happen with the House Bank Scandal.
• This did not happen with the Teapot Dome Scandal.

Yet, justice was served in these cases without breaching the separation of powers.

In fact, it hasn't happened in the 219 years of public corruption investigations and prosecutions.

We will solve this constitutional problem by taking steps to preserve the ability of the Department of Justice to prosecute its case while enforcing compliance with the separation of powers required by the Constitution.

NO ONE IS ABOVE THE LAW, JUST AS NO BRANCH OF GOVERNMENT IS ABOVE THE CONSTITUTION.

And if that wasn't enough - they've provided a handy Q&A for interested parties.

Questions & Answers on FBI Search of Congressional Office

Question 1: Does the Constitution safeguard the independence of the legislative branch and, if so, how does it do that?

Yes. The Constitution safeguards the independence of the Legislative Branch in two ways. First, the Constitution divides and distributes the powers of the federal government among the three branches: article I sets forth the powers of the Legislative Branch; article II sets forth the powers of the Executive Branch; and article III sets forth the powers of the Judicial Branch. This "Separation of Powers" is fundamental to the structure of our government and was intended by the Founding Founders to protect Americans' liberty by ensuring that undue power would not be concentrated in any one branch of the government. Each branch is to operate independently, within its own sphere of power and responsibility.

Second, the independence of the Legislative Branch is safeguarded by the Speech or Debate Clause of the Constitution, article I, § 6, cl. 1, which provides that "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." Because of the extraordinary abuses of the English Parliament by the English monarchy in the centuries preceding the American Revolution, the Founding Fathers were particularly concerned that the Legislative Branch of our government be able to operate freely, independently and without fear of intimidation by the Executive Branch. Accordingly, they included the Speech or Debate Clause in the Constitution to ensure that legislators could not be questioned about their legislative activities, or subjected to lawsuits or prosecutions for their legislative activities.

The independence of the Legislative Branch is vitally important to a free society because it checks the Executive Branch which possesses enormous powers such as the police and law enforcement powers, and control over the military. No branch of government can ignore the limits on its powers under the Constitution just because it thinks certain actions are a good idea or might be popular. For example, even if Congress thought that a law outlawing speech that praised the actions of terrorists were a good idea, it could not and should not pass such a law because the First Amendment protects the right of all Americans to freely express themselves. And even if the Executive Branch thinks that Congressman Jefferson is guilty of a crime and that it is a good idea to search his Congressional office, it cannot and must not do so unless the search can be conducted consistent with the Separation of Powers principle and Congressman Jefferson's Speech or Debate rights. Saturday night's raid on Congressman Jefferson's Congressional office was not even remotely consistent with the Separation of Powers principle and Congressman Jefferson's Speech or Debate rights.

Question 2: What has the Supreme Court said about the Speech or Debate Clause and the importance of legislative independence?

• A. The Supreme has explained that the purpose of the Speech of Debate Clause is
  

  to insure that the legislative function the Constitution allocates to Congress may be performed independently.

  [T]he "central role" of the Clause is to "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." -- Eastland v. U.S. Serviceman's Fund, 421 U.S. 491, 502 (1975).

  In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders." --U.S. v. Johnson, 383 U.S. 169, 178 (1966).

• B. The Supreme Court has also explained the scope of the Speech or Debate Clause as extending to all activities that are
  

  an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.-- Eastland , 421 U.S. at 504.

• C. Finally, the Supreme Court has stated repeatedly and unequivocally that when the Speech or Debate privilege applies, it is "absolute," and the Court has insisted that
  

  [because] the guarantees of th[e Speech or Debate] Clause are vitally important to our system of government," [they must] be treated by the courts with the sensitivity that such important values require. -- Helstoski v. Meanor, 442 U.S. 500, 506 (1979).

In short, the Supreme Court views the Speech or Debate Clause of the Constitution as a very, very big deal.

Question 3: Why is it so important that the Department of Justice return the documents it unlawfully seized?

The need for return of the documents has nothing to do with the Justice Department's case against Congressman Jefferson. Every Congressional Office contains certain Legislative Branch documents that are protected by the Constitution. This protection - as the Supreme Court has repeatedly recognized - is essential to guarantee the independence of the Legislative Branch. No matter how routine and non-controversial any individual Legislative Branch document might be, the principle of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech or Debate Clause of the Constitution must be respected in order to prevent overreaching and abuse of power by the Executive Branch.

No one in Congress is saying that the Justice Department cannot or should not seek out information relevant to a criminal investigation. All Congress is saying is that the Justice Department must seek information in a manner consistent with the Speech or Debate privilege - just as prosecutors and law enforcement officers must seek information in a manner consistent with all the other constitutional freedoms to which Americans have a right, such as the First Amendment right to free speech, the Fourth Amendment right to be free from unlawful search and seizure, the Fifth Amendment right against self-incrimination, and the Sixth Amendment right to an attorney.

Consider also Congress's constitutional obligation to conduct oversight of the Executive Branch. In the past, relevant Congressional committees have investigated, for example, misconduct in the Justice Department, including the Office of Public Integrity and the FBI. If the manner in which the Justice Department executed the search warrant were to set a precedent, then the Justice Department could execute search warrants on such Congressional committees and seize the documents that demonstrate their own misdeeds. This would seriously erode, if not effectively end, Congress's ability to conduct oversight of the Executive Branch, to the very great detriment of the American people.

Question 4: In the 219 years since the adoption of the Constitution, why has the Department of Justice never executed a search warrant on a congressional office before now?

That is a very good question, and a question best asked of the Department of Justice. Members of Congress, including the Speaker of the House and the House Democratic Leader, have questioned why after 219 years of successfully investigating and prosecuting public corruption cases without violating the Constitution, the Justice

Department now felt it was necessary to overturn 219 years of precedent and to violate the Constitution.

Question 5: How have the Congress and the Executive Branch worked out these sorts of issues in the past?

The Executive Branch routinely requests information from the Legislative Branch, in both civil and criminal matters, often through subpoenas. Congress also routinely requests information from the Executive Branch. Typically the two branches work hard to accommodate one another without raising Separation of Powers concerns and constitutional questions. The Justice Department, in particular, obviously and wisely has concluded in the past that it had sufficient tools in its law enforcement arsenal to successfully prosecute public corruption by Members of Congress without breaching the Separation of Powers principle or violating the Speech or Debate Clause.

Question 6: Did the Justice Department really exhaust all of its other options to get documents from Jefferson's office without resorting to a search warrant?

In the affidavit the FBI submitted to the judge in support of its application for the search warrant, the Justice Department claimed that it had exhausted all other means to get the documents before seeking the warrant. In the version of the affidavit the Justice Department released to the public, however, it redacted all of the information relating to its claim that it exhausted all other options. It is therefore difficult to determine whether the Justice Department's representations to the judge were accurate. However, Members of Congress are very, very skeptical that the Justice Department has, in fact, exhausted all other means. Indeed, the House knows the Justice Department failed to exhaust other options because no one in the Justice Department ever attempted to reach out to the House leadership in an effort to find some solution that would avoid a search warrant.

Question 7: Why was the FBI's search of Congressman Jefferson's office unconstitutional? Didn't the FBI claim to have implemented safeguards to prevent any violation of the legislative privilege?

The search of Congressman Jefferson's congressional office violated the Speech or Debate Clause because the FBI searched Congressman Jefferson's entire office (including his legislative materials) and seized many of his record (including all of his computer hard drives which contained legislative materials), all without the Congressman being present of having any opportunity to remove his privileged legislative materials.

The procedures set out in the search warrant did not even remotely cure the Speech or Debate Clause violation. Those procedures authorized the FBI to seize documents and computer files from Congressman Jefferson's office without any removal of legislative materials by the Congressman; permitted the so-called Filter Team to decide all by itself which documents are covered by the privilege and which are not (even though it is literally impossible for them to make that determination without being inside the Congressman's mind, knowing his motivations, and having a comprehensive knowledge of his legislative activities); authorized the Filter Team to immediately turn over to the investigators all documents the Filter Team concluded were not covered by the privilege; and, finally, provided for the Justice Department to take any documents the Filter Team had concluded might be privileged to court for judicial determination of privilege by the judge. In short, those "procedures" make a mockery of the Speech or Debate Clause privilege - an "absolute" privilege according to the Supreme Court of the United States -- for many reasons, but principally because provide no role for Congressman Jefferson determine in advance which of his documents he believes are covered by the privilege.

If this search is allowed to stand, then Separation of Powers and Legislative Branch independence will be very seriously eroded. The Legislative Branch would have little protection against Executive Branch officials willing to abuse their power and intimidate or retaliate against Congress and its Members. This, in return, would curtail Congress's ability to conduct the oversight of the Executive Branch mandated by the Constitution's system of checks and balances.

Whatever the circumstances, to assume that one branch of government will preserve the prerogatives of another branch is to assume that the safeguards put in place by our Founders are unnecessary. Consider for example if the FBI conducted a similar raid on a Member serving on the Judiciary Committee, and known or unbeknownst to the FBI, the Judiciary Committee was conducting an investigation involving a whistleblower within the FBI who was alleging corruption or misconduct within the FBI, and the Member whose office was being raided had in his or her office documentation related to this Congressional investigation of FBI corruption. While the FBI might have legitimate claim to other documents not protected by privilege in the Member's office, enabling the FBI to see the Congressional documents relating to the investigation of the FBI would obviously create grave harm. This illustrates the vital purpose served by the Separation of Powers principle and the Speech or Debate Clause of the Constitution.

Question 8: What was the timeline of the FBI search? Did the FBI make any effort to notify the House or its Office of General Counsel of the search warrant?

Although the Justice Department and the House Office of General Counsel have been in regular contact over the ten months the House has been aware of this investigation, the FBI entered Congressman Jefferson's office without any notice whatsoever to the Speaker of the House or the House Office of General Counsel. The FBI entered the office and spent 18 hours looking through and seizing documents, as well as imaging entire computer hard drives. Some of the material was very likely legislative and some of it was very likely outside the scope of the FBI's investigation.

The FBI arrived at the Rayburn House Office Building at approximately 6:20 pm on Saturday night, May 20, 2006, having given no prior warning that they had a search warrant to the House leadership, the U.S. Capitol Police, or the House Office of General Counsel. At approximately 6:43 pm FBI agents entered Congressman Jefferson's office, and they remained there until approximately 1:00 pm on Sunday afternoon. The FBI did not give the House or Congressman Jefferson an opportunity to go to court to challenge the application for the warrant or its procedures prior to the execution of the warrant, and did not allow House attorneys or Congressman Jefferson's attorneys to witness the search as required by Rule 41 of the Federal Rules of Criminal Procedure.

Question 9: Is this a smart battle for Congress to fight?

Perhaps not. Defending Constitutional principles - particularly those related to institutional balances of power - is often not politically expedient and often results in bad publicity. But it is vital for the House to defend the Constitutional principles of Separation of Powers and Legislative Branch independence, not for the benefit of the Members themselves, but for the benefit of Americans everywhere who value their freedoms. Americans of all political stripes should appreciate this. However, conservatives, perhaps even more than others, should understand and appreciate the importance of public officials putting principle ahead of politics and standing up for the Constitution against the prevailing political winds.