The FBI recently executed a search warrant at the Congressional office of Rep. William Jefferson. The Associated Press reports that House leaders think the search may be unconstitutional:
The FBI’s weekend search of the House office of a Louisiana Democrat under investigation for bribery may have overstepped constitutional boundaries, House leaders said as the congressman under investigation pledged to stay in office.
House Majority Leader John Boehner of Ohio told reporters Tuesday that the Congress will somehow speak to ”this issue of the Justice Department’s invasion of the legislative branch. In what form, I don’t know.”
”I’ve got to believe at the end of the day it’s going to end up across the street at the Supreme Court,” Boehner said.
House Speaker Dennis Hastert said the Justice Department had never before crossed a line that separates Congress from the executive branch by searching a congressional office while investigating a member of Congress.
Given that the FBI obtained a warrant, what would the legal theory be that the search was unconstitutional?
I don’t think the Fourth Amendment provides such an argument. If the government can execute a warrant at a newspaper, or at a lawyer’s office, why not a Congressional office? Of course, Congress could pass a law prohibiting searches of Congressional offices, Cf. The Privacy Protection Act, but they haven’t done so.
A more likely theory would be the Speech and Debate clause, Art. I, 6, cl. 1:
The Senators and Representatives . . . 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.
Given that executing a search warrant involves neither an arrest nor questioning, it would seem to me that the Clause isn’t applicable. Further, Gravel v. United States, 408 U.S. 606, 626-27 (1972), seems to suggest that Congress is not generally exempt from criminal process under the Clause:
Article I, 6, cl. 1 . . . does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If [the conduct under investigation] would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation.
At the same time, this is only a snippet, and it’s hard to reach a more definitive conclusion without spending more time looking through the cases. For a good summary of the law, this page at Findlaw is a good start. Are there any Speech and Debate Clause experts out there who would care to comment?
As Orin notes,
SCOTUS has said quite plainly that the First Amendment is not a shield insulating newspapers from searches pursuant to warrants, even where the newspaper is merely a neutral custodian of records incriminating third parties.
I don’t think one should take lightly the potential for executive intimidation of the legislative branch. Assemblies throughout history have been bullied or forcibly dissolved by power-mad leaders. (ObGodwin: the 1933 arrests of Reichstag deputies.) However, it’s prima facie evidence of mental derangement for anyone to claim that searching Jefferson’s office was an abuse of authority or otherwise, um, unwarranted. Among other facts, we have this:
“Justice Department officials, meanwhile, said Tuesday the decision to search Rep. William Jefferson’s office was based in part on Jefferson’s refusal to comply with a subpoena for documents that was issued last summer.”
For what it’s worth, back in April, Ed Whelan (in a discussion of the Cynthia McKinney incident) noted that under the 1908 SCOTUS precedent of Williamson v. U.S. (207 U.S. 425) , the “except” in art. I, 6, cl. 1 applies to “all criminal offenses.” It would not seem that Gravel altered that interpretation.
I would have thought that by the clause’s own terms, it does not apply to a search of their offices. Nor do I see how the separation of powers argument carries much water: a serving member of Congress can be called to testify to a grand jury or in court procedings, can they not? Just because someone is serving in Congress, they are not shielded from interaction with the third branch, so why from the second?
Can a member of Congress be given a parking ticket? Other than magnitude, what’s the difference?
As a policy matter, it seems like the warrant requirement would allay any concerns of Executive overreaching. They can’t just send the FBI to rummage through Congressional offices willy-nilly.
Apparently there is no precedent for a raid of a Congressman’s office, but how about a duly authorized search of a judge’s chambers, perhaps as part of a bribery or corruption investigation? This would also raise separation of powers issues, and there must be some precedent.
My take is that the Speech and Debate Clause ostensibly does not apply, but members of Congress find troublesome the notion that they would not be given the courtesy and respect due those who serve as members of Congress, e.g., advance notice, privacy of their own chambers, a blind eye to relatively minor crimes, etc. While there is a very strained argument that Congress, or any legislature, controls the conditions by which one loses membership in it and sets its own internal procedures, separation of powers, I think, is being used here as an appeal a principle of good governance rather than a legal rule that is applicable to justiciable cases. (Bipartisanship is similarly a principle of good governance, but neither a legal rule applicable in concrete cases nor enforceable in any real sense.) One ought not prosecute, or investigate, members of Congress too often, because it will kill public confidence in its public servants and coarsen our politics. Likewise, if you diminish the prestige of an office, it will be less attractive to potential candidates. It is certainly true that one branch respecting another in the general fashion that this appeal to “Separation of Powers” demands is a prudent rule-of-thumb: Congress, perhaps, is noting that if the Executive refrains from promiscuously investigating members of Congress, then Congress will refrain from flooding the White House with subpoenas and nitpicking the President’s policy choices in ad hoc commissions. Inter-branch respect, and deference, makes for a more pleasant world for each and every branch.
MalthusF, if congress members don’t want to be investigated or prosecuted for certain federal crimes, they should probably repeal the laws criminalizing those things. Of course, that would be transparent and constituents might question why their representative wanted it to be legal to except quid pro quo bribes.
To be honest, I don’t really understand the appeal of your comment at all. Comity is surely good, but you seem to think it paramount.
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Unfortunately I’m on vacation right now, so I can’t find the relevant cases. The protection of the Speech or Debate Clauses varies based on what material is being searched and who the author of the material is. The protection of the Speech or Debate Clause is afforded to materials created by the representative himself and any aides that are so close to him as to be his “alter ego.” However, it doesn’t reach less important aides. The Speech or Debate Clause also doesn’t protect materials that aren’t related to a core legislative function. This is a tricky category to define, but almost anything related to voting is in, and things less-related to voting are not. For example, one Senator tried to re-publish classified hearings regarding the Pentagon Papers, and this was not protected by the SORDC (on the theory that such republication isn’t a part of a legislator’s core duties). Also, legislative exercise of the executive power is less protected; for example, some Congressmen tried to order an unconstitutional arrest, and while they were afforded some sort of protection (either SORDC or a non-constitutional legislative privilege, I can’t remember), the non-Congressman who carried out the arrest was not. The tricky issue is whether bribes for votes are covered. A few courts have held that they are not, under the theory that a bribe involves only promises of future votes, not descriptions of past votes. But this theory doesn’t seem too sensical to me. Again, apologies for being on vacation on not able to look up the relevant cases.
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Malthus,
Would advance notice of a search intended to retrieve evidence of elicit dealings not defeat the purpose of such a search, for the same reasons that the police do not generally advertise their intent to raid a given house to discover a meth lab?
Perhaps it is fair to say that a Judge should set an unusually high standard to be met before issuing a warrant to search a Congressional office.
While I do not disagree that inter-branch respect, and deference, makes for a more pleasant world for each and every branch, could it not also be said that having a legislature which is not populated with corrupt members is also conducive to a more pleasant world for each and every branch.
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Now we have a bit more understanding for the mechanisms at work in the infamous Yoo memos.
I cannot imagine the Speech and Debate Clause turning a legislator’s office into a constitutionally immune sanctuary for evidence of crime. And, the interposing of another constitutional actor—the judge—between the Executive and Legislative branches here would seem to alleviate most separation of powers concerns.
The nature of the place to be searched, however, should be a factor to be considered by the judge in evaluating the reasonableness of a search, even with a warrant. The search of a lawyer’s office or a newspaper office, for example, often invades privacy and other constitutional and statutory interests beyond the personal privacy interests of the lawyer or newspaper reporter. Similarly, a legislator’s office likely contains information of significance beyond the legislator’s own privacy interests, information that relates to the constitutional office he or she holds or the legislator’s constituents. Government searches should be constrained to the extent reasonably possible protect this type of information.
From what I’ve read, the judge here amply took this concern into account by requiring a special prosecution team, independent of the team investigating this legislator, to review all seized material and screen out anything privileged to ensure the integrity of legislative materials. This procedure reminds me of procedures I’ve seen judges use when authorizing the search of a lawyer’s office to protect client privilege and privacy interests.
Anything more, I would think, would allow legislators improperly to use the interests of their office and constituents as a shield from personal criminal investigation. But, in my haste to return to grading exams, maybe I’m missing something!
Whether it has personal appeal to you is really beside the point; the point is members of Congress think it has both appeal and currency. I never said I agreed with the view. I, quite neutrally, explained what was the view.
As I read more here and elsewhere, I am impressed that this search effectively illustrates the distinct may-should analysis in which prosecutors regularly must engage when making many if not most decisions. First, may the Government pursue a proposed course of action? I took this question to be the focus of Prof. Kerr’s post, and it was the point of my earlier comment. But even if the Government may do something, prosecutors often still must ask whether they should do it – the question that highlights the critical role of prosecutorial discretion.
I have not found the time to research the legal issues here, but I suspect that this ‘should’ question may prove the most interesting and sensitive question related to this search, and many of the complaints I have read from other legislators seem to focus on this exercise of Executive discretion in light of the institutional and structural implications of the search. Indeed, much of this Executive’s broader law enforcement agenda, although certainly aggressive on the ‘may’ questions, ultimately may center on this ‘should’ question, with it often being criticized as taking the approach: because we arguably may, therefore we should. It’ll be interesting to see how it plays out here.
I’d be curious to hear what, if any thought – if even necessary given Gravel – Prof. Kerr has given to the possibility of a ‘fraud-crime’ exception to any privilege that even arguably arises under the Speech and Debate clause? I’m not sure there is any case law on this, but, for a crude example, it can’t be the case that a congressman could assert privilege over an original copy of a threatenting or blackmail letter simply because he had an aid type it up on office letterhead and send it to a constituent.
Good points, thanks Orin.
I have a feeling, though, that Congress doesn’t care about the legal niceties and is basically asserting themselves to be above the law, and daring anyone to stop them.
Hope the Executive doesn’t back down!
United States District Judge Robert F. Collins of New Orleans, who by the way I think may have been a political ally of Jefferson’s, was caught accepting bribes and removed from the bench. A search of his chambers was conducted, I’m certain pursuant to a warrant, that turned up the evidence (marked money).I agree with the poster who said that it’s hard to see why Federal judges chambers can be searched pursuant to warrant, but not congressional offices.
Here’s the crux as I see it.
During the course of the search, executive branch officials will uncover information that is 100%, unquestionably protected by the Speech and Debate clause. Even under the most restrictive reading of it.
Are the safeguards put into place for this search adequate? Can you have another group of agents reading constitutionally protected materials so long as they promise not to remember their contents?
If the “filter team” sorting through the documents to see what is protected or not had been pulled from members of the legislative branch (i.e., the Capitol Police or Consul’s office), so that executive branch officials only saw evidence pertaining to the crime, Congress would not have any complaints about separation of powers.
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am i just missing something here? the constitution says “shall in all Cases, except Treason, Felony and Breach of the Peace” if i’m not wrong, bribery of a federal official is a federal felony offense with severe penalties. i’d say right there that all so-called immunities are void.
personally, with the way congress is acting, they should do a major raid of all congressional financial accounts, offices, and residences. the over abundance of crying foul tells me that they’re running scared, and a lot of them have things to hide.
and if in the process maybe some politicians are reminded that they are fellow citizens who are expected to obey the laws they pass, all the better.
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It seems to me that the constitutional protection here, if any, would arise from the same theory that allows the President to assert Executive Privilege in response to a Congressional subpoena… the inherent powers and needs of the institution. Of course, the Supreme Court has made clear that even that protection does not protect against uncovering evidence in a criminal investigation, but that doesn’t mean the privilege, as a constitutional matter, doesn’t exist for at least some purposes.
There’s no language in Article II specifically granting the President the power of “Executive Privilege”, but it still exists, at some level. So there need not be a specific protection in the Speech & Debate clause in order to find the same type of protection among the inherent powers of Congress under Article I.
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Angus: “so that executive branch officials only saw evidence pertaining to the crime”
This quote highlights the problem with teasing search and seizure implications out of the penumbras of the Speech and Debate Clause.
The Executive itself has to review all of the plausibly relevant documents with its own eyes to determine which ones are incriminating and which ones are not.
Impeding a federal investigation, especially once a warrant has been issued, even if the obstruction is headed by House counsel and manned by Capitol Police, is not legal.
What (1) makes more sense and (2) is consistent with the prevailing precedents on the Speech and Debate Clause is the following: when the prosecutor empanels a grand jury, Jefferson can file a motion asking that certain documents that fall within the protection of the Speech and Debate Clause be kept from exposure to the grand jury; if that fails, Jefferson may file a motion seeking to suppress certain documents at trial because they fall within the Speech and Debate Clause.
While the privilege is evidentiary, there is little to no proof that the protection precludes any investigation of members of Congress and attaches prior to the attachment of the Sixth Amendment.
As Orin has pointed out over at VolokhConspiracy:
“18 U.S.C. 3105, which Congress passed to govern who can execute federal search warrants:
‘A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.’”
It seems that would decisively settle the issue of whether there can be a “Filter Team.”
What members of Congress are complaining about as a violation of “separation of powers” is, ironically, a perfect example of “separation of powers” in action. The constitution creates three branches of government with each given separate and independant functions. This was to provide the crucial “checks and balances” concept that is part of our system of government. One of the primary functions delegated to the executive branch (of which the FBI and US Attorneys are a part) was the enforcement of laws. That includes the investigation and prosecution of criminal offenders. (In Jefferson’s case it is an allegation of bribery). Congress does not investigate and then prosecute violations of criminal laws; they pass those laws. In Jefferson’s case, the executive branch, pursuant to the requirement of the Fourth Amendment, presented evidence under oath or affirmation to the judiciary for an independant review. So the executive branch actually performed its separately delegated function under the Constitution. Then, as a check and balance, we have the judicial branch performing the functions delegated to it by the Constitution. The judiciary independently reviewed the actions and requests of the executive branch and founs that there was probable cause to believe that there was particularly-described evidence of a crime located at a specific location and, thereafter, issued the warrant. The executive branch did not exercise the powers delegated to Congress. Nor is it questioning the lawfully delegated functions of Congress and trying to void them. There simply is no violation of separation of powers. It is, rather, a matter of Congress being offended that the lawful functions of the other two branches are targeted towards one its members.
The complaints of members of Congress really amount to an unsubstantiated argument that the Constitution exempts members of Congress from the actions of the executive and judicial branches if their actions involve issuance and execution of a search warrant on a congressional member’s office. There is no Congressional exemption from a search warrant – not even under the Speech and Debate Clause.
So, let’s just call it like it is: It is not about violating the Constitution. It is a beef about whether one branch of government (here the executive branch) exercised appropriate respect and restraint in relation to carrying out its responsibilities vis-a-vis another branch of government (here the legislative branch). There can be little doubt that members of Congress are concerned about the fact that there are politically sensitive items that are located in their various congressional offices. I’m sure that it might even be horrifying for them to think that any outside person (FBI or otherwise) could end up possessing politically sensitive materials or comming across politically sensitive materials during a search. I think everyone can respect that concern, especially for those members of Congress for whom the executive branch may have the proverbial “ax to grind.”
I think we should let another facet of the “separation of powers” concept play out. Congress and the executive branch need to recognize they are two big kids living on the same block with the power to make each other completely miserable. Then, with that in mind, they need to use their best efforts to reach agreements that allow each branch to carry out its responsibility without interfering with or interference from the other branch. It is about sitting down at the table, being honest about the concerns, and pounding out an understanding that meets the needs of both branches.