Wednesday, May 31, 2006

# Posted 10:50 PM by Ariel David Adesnik  

WAY OVER MY HEAD: I can only dream of having the legal expertise necessary to provide an authoritative opinion of whether or nor it was unconstitutional for the FBI to search Rep. William Jefferson's office as part of a bribery investigation.

However, there is one OxBlogger who need not dream of such things. Josh Chafetz, our erstwhile colleague and author of a whole damn book on parliamentary privilege, argues in TNR that the constitution actually does forbid executive agencies from searching legislative offices. As I understand it, the essence of his argument is as follows:
In fact, the Speech or Debate Clause of the Constitution should be interpreted to prohibit searches like these. To allow such searches undermines the independence that the clause is meant to secure for Congress...

Meeting with constituents most certainly is part of a legislator's legitimate duties. And any prosecution for bribery or similar offenses necessarily involves an inquiry into whether these meetings involved improper promises or representations--that is, it involves poking around in legislators' dealings with constituents and attempting to divine their true reasons for acting the way they did. The Speech or Debate Clause was intended precisely to prevent the executive and the judiciary from passing judgment on how members of a coequal branch perform their official duties...

Moreover, because the Speech or Debate privilege was meant to be a shield against the judiciary, as well as the executive, it is irrelevant that the search of Jefferson's office was carried out pursuant to a warrant.
I do recommend that you read the whole of Josh's article, since this summary does not do it justice.

For an opposing perspective, I recommend this essay in Slate by Akhil Reed Amar, a professor at Yale Law School whom Josh knows quite well. (Hat tip: WB) Amar argues that:
The [Speech and Debate] clause does not insulate sitting Congress members from ordinary criminal arrest and prosecution. No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace"—and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes...

So, what did the [US Constitution's] Arrest Clause actually privilege? Basically, it insulated a sitting congressman from certain civil lawsuits brought by private plaintiffs seeking a court order that would physically "arrest" the defendant, with the effect (and perhaps purpose) of removing the congressman from the floor and thus disenfranchising his constituents...

What about the remainder of Article I, Section 6, which specifically protects congressional "Speech or Debate"? Here, too, the language provides little shelter for [Rep. Jefferson].

Essentially, this is a clause about political expression. In 18th-century England, Parliament (whose name derives from the French verb parler, to speak) was a speech spot—a parley place, a venue in which free speech needed to prevail, and thus where no member was properly subject to civil or criminal prosecution for libel as a result of something he said on the floor.
So who is right? As I said, this one is way over my head. What I can say is that Josh's essay brings forward a lot of evidence that Amar's essay does not address (and vice versa, to a certain extent). Of course, Prof. Amar may have a ready response to such points but did not see fit to include them in his essay.

But I wouldn't be so sure, since Prof. Amar knows what a formidable scholar Dr. Chafetz is. On the back cover of Josh's book, this is what Prof. Amar had to say:
This book heralds the arrival of an important new scholar in the fields of comparative constitutional law and legal history. Fitting a broad range of institutional details into a comprehensive and subtle theoretical framework, Chafetz shows how Congressional privileges in America and Parliamentary privileges in England sprang from common origins but then evolved along separate paths as a result of basic differences in the political ecosystems. An excellent chronicle of the evolution of legislative privileges from the parliamentary supremacy of England to the popular sovereignty in kingless America."
High praise from such a prominent author. Good work, Josh. My guess is that William Jefferson will get what's coming to him regardless of what becomes of the evidence taken by the FBI search.
(5) opinions -- Add your opinion

Mr. Chafetz's interpretation may be supported by his detailed reading; like you, I cannot adequately judge. I would like to note, however, that the conclusion is repugnant because it violates the symmetry of powers among the branches of government.

The Congress can remove Presidents or Justices by an act of raw political will, without any further justification. Allowing them also to completely shield themselves from removal for their own malfeasance would undesirable privilege the Congress above the other branches.

If a congressman serves his constituents and his party by dishonest means, it is unlikely he will be removed from within. It is entirely possible that Mr. Jefferson's constituents were not harmed by his alleged crimes -- his enhanced total influence may have compensated for their decreased share thereof. Protecting the Congress against the other branches of government is tantamount to protecting its members from any oversight whatsoever.
Why are we discussing this as if this is a raw exercise in executive branch power? We aren't seeing the clash of inherent powers here. Rather, we are seeing the executive branch enforcing laws written by Congress.

If Congress intended that crimes such as bribery and campaign finance violations should not be enforced against members of Congress, shouldn't Congress have made that plain in the statutory text?

Congress wrote these criminal laws and didn't exempt itself. The Constitution requires the executive to carry out the enforcement of those laws. It's hard to see the basis for Congress to complain now.
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