Well, the Courts have spoken on this matter a number of times, and the Washington Post does an excellent job of summing the matter up for us.

The Speech and Debate Clause, contained in Article I, Section 6 of the Constitution, says that members of the House and Senate "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."

It was meant to safeguard the independence of Congress against executive branch intimidation, of the kind the Founders had witnessed under King George III's colonial governors, and harassment from private lawsuits.

Over the years, however, some lawmakers invoked the clause to shield corrupt activities. Given the clause's exception for serious crimes, the Supreme Court has had to define the scope of its protections.

In a series of cases during the 1960s and '70s, the court drew a protective line around papers, speeches and activities that are "essential" to legislative acts or the motives behind them, such as floor statements or committee reports. But it declined to protect anything not closely connected to legislative work, such as remarks to the press or constituent newsletters.

In 1972, for example, the court ruled that the Speech and Debate Clause could not shield Sen. Daniel B. Brewster (D-Md.) from prosecution for accepting a bribe in exchange for his promise to vote a certain way on postage rate legislation. (Brewster pleaded no contest to the charge.)

That same year, the court ruled that a Senate aide, though covered by the Speech and Debate Clause, had to respond to a grand jury subpoena to answer questions about whether Sen. Mike Gravel (D-Alaska) had violated federal law by arranging for a private book publisher to print the Pentagon Papers. (The Justice Department later dropped the case.)

In 1979, the court ruled that Sen. William Proxmire (D-Wis.) could be sued for defamation by a scientist whose work he had mocked in a news release and newsletter.

But it also ruled in a separate case that the government could not use a House member's past votes or speeches as evidence of his motive for committing an alleged offense.

And a federal appeals court in Philadelphia ruled that the Justice Department was not entitled to look through the telephone records of a member of Congress.

So generally speaking, the protections afforded Congress by the Speech and Debate clause are pretty narrow -- and do not extend to shielding corruption from investigation and prosecution.

A ccouple of law professors also weigh in on the matter.

"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University's Fletcher School of Law and Diplomacy.

The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.

Both the search warrant for Jefferson's office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers -- and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.

But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.

"It's really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don't see any constitutional principle here."

But that is precisely teh issue here -- there is no violation of the Constitution. Custom has decreed that the Executive branch take a less confrontational appoach to such investigations -- but in this case, there has been teh violation of another custom, namely that a member cooperate with the investigation, which Jeferson and his lawyers have refused to do. Thus the Judicial Branch has weighed in and found probable cause for a warrant to be issued -- and left open room for Jefferson to challenge the search of the office and the seizure of any and all materials, exactly as is the right of any other citizen.

And I'd like to comment upon the responses of Denny Hastert and Nancy Pelosi.

"The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years," Mr. Hastert and Ms. Pelosi said in a rare joint statement.

As noted above, they are clearly wrong in their characterization of the actions of the Justice Department. There is clearly no basis for demanding the return of these materials to Jefferson on the basis of any Constitutional provision, nor does "custom" constitute a basis for the laws not being enforced.

Furthermore, I am appalled by the weakness of this portion of their statement.

Once the papers are returned, "Congressman Jefferson can and should fully cooperate with the Justice Department's efforts, consistent with his constitutional rights," the statement said.

Unfortunately, that assertion ignores the history of this case. Sure, he "can and should" cooperate. But the reality is that he has not cooperated, and is unlikely to do so in the future if the past is truly prologue in this case. And Hastert and Pelosi have no means to enforce Jefferson's cooperation with the investigation -- that power only lies in the hands of the Executive and Judicial branches working together in the request for and issuance of a search warrant and its execution, which we saw over the weekend.

I applaud the position of the justice Department on this matter.

A Justice Department official, who spoke on the condition of anonymity because of the sensitivity of negotiations, said after the Hastert-Pelosi joint statement was released that "the department will not agree to any arrangement or demand that would harm or hurt an ongoing law enforcement investigation."

"We are in discussions with them on something that would preserve law enforcement interests while also allaying their institutional concerns," the official said. "But our position is that we did it legally and we did it lawfully, and we're not going to back away from that."

In other words, compliance with the mandates of the Constitution are sufficient safeguard, and claims of some sort of Congressional immunity from the Constitution are rejected.

By the way, the Congresscrook in question, Louisiana Representative William Jefferson (D-$90,000 in the freezer) is making use of the one legitimate remedy available to him -- he is challenging the warrant in court.

Jefferson challenged the weekend raid in a motion filed yesterday in federal court. The motion sought the return of the documents and "immediate relief," including that the FBI and Justice Department stop reviewing seized items; that the materials be sequestered in a locked, secure place; and that the FBI raid team file a report with the court detailing which documents were reviewed and what was done to sequester the documents.

The motion was filed with Chief U.S. District Judge Thomas F. Hogan, who signed the Saturday-night search warrant.

This is the appropriate venue for resolving the issue at hand, not the political arena or a congressional hearing room.

I paricularly like the summary of the case history contained in the Washington Post article. Be sure to read it.

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Posted by: Greg at 11:51 PM | No Comments | Add Comment
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