Redstate

By Gerry Daly Posted in Republicans — Comments (19) / Email this page » / Leave a comment »

It is bad when your own advocates decide to Fisk you. This regards the talking points Mike has posted just above.

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.

First, they are right that it is not about Rep. Jefferson and his legal problems. It hasn't been since Hastert and Boehner and company decided to make it not be about Rep. Jefferson and his legal problems.

The problem is that it precisely should be about Rep. Jefferson and his legal problems.

More below.

Second, Minority Leader Pelosi requested his resignation, not from Congress, but from a committee from which she could have him removed. Color me unimpressed with how decisively this has been handled by Congress so far. Especially since his response has been "get stuffed."

It takes unbelievable creativity and motivation to turn a scandal involving bribes of a Democratic Congressman, with such sensational and media-friendly tidbits such as the money being hidden disguised as lasagna in the icebox, into a scandal about GOP leadership in the House trying to put itself above the law. That is what this is about now.

• 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.

Except that it does have the side effect of defending Rep. Jefferson. Further, it does so by validating the very claims against the administration that the GOP has rightly been defending against. The Democrats, with their attacks over Guantanamo, over wiretaps, over data mining, over every single thing the administration has been doing to fight terrorism and against corruption, have been singing this very song. And the GOP House leadership decides this is a great opportunity to sing harmony?

• For the last 219 years, the Speech or Debate clause has been upheld by numerous courts.

At no time in the last 219 years have the courts decided that the Executive, with an order authorized by the Judiciary, was not allowed to search the office (or freezer !) of a Representative in the course of a felony investigation.

If this is a mistaken belief on my part, then it will be easily rectified. They should be able to provide the court case with the precedent-- they can even leave out the freezer detail to give them more chances for hits.

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

The key words being "when [it] applies." Clearly, in this case it does not. Let's quickly review the Constitution:

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.

First, since this is a felony bribery case, the exception is hit right off the bat. The entire rest of the verbage is not applicable. The protections and privileges afforded do not apply. This is the plain language. They want to try to argue differently? The leaders of the party that continually appeals to those who want the actual text of the Constitution to be taken seriously? The party that says that it believes in strict constructionism?

And even if the exception was not hit, it still would not apply. Storing evidence in a freezer is not a "speech or debate in either House." A search of a government-provided office is not a question. Rep. Jefferson was not arrested.

Bringing up the "speech and debate" clause is trying to change the subject. God only knows why.

• 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)

The importance of the "Speech and Debate" clause is irrelevant since the "Speech and Debate" clause is not applicable. It is very important that I get a good night's sleep tonight, but that has nothing to do with Rep. Jefferson and the weekend raid of his icebox. In this regard, my rest tonight is quite similar to the "Speech and Debate" clause.

Please also see Leon's quick and timely RedHot post on this talking point. For simplicity of browsing, I will include it here, in its entirety:

The talking points rely heavily on United States v. Helstoski for support of their position. Perhaps they should have read it a little closer. Language from the opinion (442 U.S. 477):

"Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." 408 U.S., at 512.

Oh, wait: there's more:

Nothing in our opinion, by any conceivable reading, prohibits excising references to legislative acts, so that the remainder of the evidence would be admissible. This is a familiar process in the admission of documentary evidence. Of course, a Member can use the Speech or Debate Clause as a shield against prosecution by the Executive Branch, but only for utterances within the scope of legislative acts as defined in our holdings. That is the clear purpose of the Clause.

So, exactly how narrow is this protection? We're still unclear. Would, say, evidence of bribery be shielded in any way?

As to what restrictions the Clause places on the admission of evidence, our concern is not with the "specificity" of the reference. Instead, our concern is whether there is mention of a legislative act. But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not "speech or debate." Likewise, a promise to introduce a bill is not a legislative act.

These talking points are patently absurd. Nothing in the clause or Supreme Court precedent protects the physical office space of a member of Congress. There is further nothing that would suggest, despite all of the language in the opinion about "care being taken" to protect the legislative product of Congress, that keeping $90K in your freezer is a legislative act.

Well done, Leon. Now back to the talking points.

• The spirit of the Speech or Debate clause dates back to the English Civil War.

Think of what they are implying. They are implying that the people involved in the founding of our country would find it to be completely unexceptional that Congress would be able to claim their offices out of reach of the other branches of government, even when felonious acts are being investigated. They are saying this is the spirit of the Constitution, which is a document that set up checks and balances for pretty much everything it could regarding the branches of government.

• 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.

The American people, with their elected Representatives and Senators, have shown themselves to be quite adept at handling abuses of power such as imagined in the scare scenario. Just ask the ghost of Richard Nixon.

But playing "what if" could be fun. What if the evidence of what happened to Chandra Levy is sitting in the office of some Representative? What if the Executive branch knew this, and what if the Judicial branch had agreed there was just cause for the suspicion? No dice? Or do you think that is an unfair scenario to invoke? If so, how is it any moreso than the one presented in the talking points? Can you say "strawman"?

What if there was evidence that a Senator had been leaking national security information with the intention of, well, who care with what intention? Should he be able to hide his malfeasance, in his office, in perpetuity?

Maybe some legislator likes children, the way Kinko the Kid-loving Clown likes children. Should he be able to hide his little black book, or his jpeg and mpeg downloads, in an office provided by the taxpayers, knowing that the Feds cannot ever get to them?

That's not the American dream I have. You may say I'm a dreamer, but I'm not the only one.

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?

They are claiming that, unless they can have sovereign territory, almost like an embassy, that is out of reach of the combined authorities of the Judiciary and the Executive, they will not be able to provide their oversight of the Executive?

Let's take that principle, and extend it to the co-equal branches of the government. The Congress would not be able to compell anything from the Executive branch, or to compell the turnover of evidence for their investigations. After all, how could the Executive branch provide its function of oversight over the Legislative branch, if it could be so intimidated by such demands from Congress?

• This did not happen with the Abscam scandal.

During Abscam, had there been a subpeona issued that had been defied for months? During Abscam, was there evidence presented to a judge that said that a Congressional office was being used to shield evidence from discovery?

• This did not happen with the House Bank Scandal.

If there was evidence about the transgressions in a Congressional office, are you arguing that it was beyond the reach of the law?

• This did not happen with the Teapot Dome Scandal.

Did they even have refrigerators back then?

Yeah, I guess they had literal iceboxes, where one had to keep the evidence really on ice. But, again, had there been a subpeona issued that had been defied for months? Was there evidence presented to a judge that said that a Congressional office was being used to shield evidence from discovery?

Did anyone at all sit down with these talking points to see if they were comparable to swiss cheese? Sliced see-through thin and full of holes?

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

Separation of powers. That implies that this was a matter the Legislature would have handled internally. Is there any evidence at all of this? If the Executive overstepped its bounds into the territory of the Legislative branch, where it the evidence that the Legislative branch was doing anything other than providing Rep. Jefferson with what he considered to be a safe harbor?

Has the Congress been doing a good job policing itself? Has it done anything about Cynthia McKinney? Has it done anything about the preferrential treatment given to Patrick Kennedy? What did the other two branches of government take away from the Legislative branch here other than the right to stash evidence in a freezer?

Is that really what the separation of powers is about? Do you really think the American people will agree with you on that?

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

Perhaps you should consider what Rep. Jefferson had been doing, and if it had precedent in 219 years. And if it did, then perhaps you should consider if that meant there might be a problem with the courtesies being afforded the Congress for those 219 years. (And, mostly surely, for a much shorter timeframe. It took generations for the mindset of the protected elitist aristocracy of the Congress to develop to its current, full-bodied form.)

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.

Separation of powers implies that not all powers reside with Congress. It implies checks and balances. It implies that when the Executive branch says to the Judiciary, "by the Constitution and by the laws, we believe we should search that office", and when the Judiciary says "by the authority vested in the Courts, we concur," that the Congress has best comply and had better not consider themselves above such reach.

It implies... the very next thing in the talking points, which damns the position being taken by House leadership despite their belief it vindicates them:

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

Guys, do me a few favors. Give me the shovel; you really should stop digging. Give me the gun; your self-inflicted wounds to your feet are hampering your ability to run. And for the love of God, get away from the computers. You are not helping yourselves. No one buys that you are being principled here. Everyone thinks, correctly, that you are being self-serving. And you are convincing the very people who should be your biggest defenders that you are not only wrong on a particular matter, but that you are not really all that bright.

Is that really what you want?

Update [2006-5-25 21:45:26 by Dales]: More from Leon:

The Talking Points email that has circulated also referenced Eastland v. United States Servicemen's Fund, 421 U.S. 491. From that opinion:

In determining whether particular activities other than literal speech or debate fall within the "legitimate legislative sphere" we look to see whether the activities took place "in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S., at 204. More specifically, we must determine whether the activities 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."

I get the feeling that "Hiding $90K in a freezer" doesn't fall within that particular sphere. Then they cite United States v. Johnson, 383 U.S. 169, which says:

The bulk of the evidence submitted as to Johnson dealt with his financial transactions with the other conspirators, and with his activities in the Department of Justice. As to these aspects of the substantive counts and the conspiracy count, no substantial question is before us. 18 U. S. C. § 371 has long been held to encompass not only conspiracies that might involve loss of government funds, but also "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Haas v. Henkel, 216 U.S. 462, 479. No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.

Whoops. Might wanna read the whole opinion, guys. At issue in the Johnson case was a speech made by the Critter under prosecution, and the court was careful to distinguish this case as a narrow holding:

We hold that a prosecution under a general criminal statute dependent on such inquiries necessarily contravenes the Speech or Debate Clause. We emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. And, without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

Jeez.

Yeah. Jeez.