Friday, August 03, 2007

Court Says FBI Raid On Congressional Office Unconstitutional ... Constitution Disagrees

The never ending saga that is William Jefferson (D-LA) continues. This is, at best, a very confusing ruling. The US Court of Appeals in DC said the raid wasn't unconstitutional, but the FBI not allowing Jefferson to hide papers was ... well, that's essentially what they were saying.

As a side note ... the Speech and Debate Clause of the Constitution does not protect lawmakers from having their offices searched, and being arrested. More on that later.


The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson's office last year and viewed legislative documents, a federal appeals court ruled Friday.

The court ordered the Justice Department to return any privileged documents it seized from the Louisiana Democrat's office on Capitol Hill. The court did not order the return of all the documents seized in the raid.

Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker's documents.

The U.S. Court of Appeals for the District of Columbia Circuit rejected that claim. The three-judge panel unanimously ruled that the search itself was constitutional but that FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.

"The review of the Congressman's paper files when the search was executed exposed legislative material to the Executive" and violated the Constitution, the court wrote. "The Congressman is entitled to the return of documents that the court determines to be privileged."

Are you a little confused? You should be, and here's why:

The Federal Bureau of Investigation is the primary investigative arm of the United States Department of Justice, the DOJ is a part of the Executive Branch. Therefore, according to the court, the checks and balances between the three branches of government were violated because the FBI (as representatives of the executive) were able to see legislative material during their search of Jefferson's office. Thus, some of the documents must be returned.

The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson. That will be decided by the federal judge in Virginia who is presiding over the criminal case.

"We're pleased with the court's decision that makes it clear that the search violated the Speech or Debate Clause of the Constitution," Jefferson's attorney, Robert Trout, said after a brief review of the ruling. He said he has not yet discussed the decision with Jefferson.

Actually, the search did not violate the clause at all, and the Supreme Court has ruled on this before.

The FBI even used a "filter team" not involved in the case to review the congressional documents. They also stated that the Constitution does not shield lawmakers, and it doesn't.

Now we are waiting for the next ruling in Virginia to find out if the incriminating evidence will be thrown out.

Most Americans are perplexed by this case because we all know if you commit a crime you will be arrested, and your property will be searched with a warrant. Well, Jefferson faces criminal charges, and a warrant was issued to search his office. No big deal right? Wrong!

The Constitution has a Speech and Debate Clause which is designed to prevent the Executive Branch of government from arresting congressional representatives in order to prevent them from voting. It's a check to prevent a tyrant from controlling Congress. Since the FBI is a part of the Executive Branch, and Jefferson is a part of the Legislative Branch, Jefferson is saying that the clause was violated by an abuse of power from the Executive Branch.

So what is the Speech and Debate Clause?

It is Article I, Section 6, Clause 1 of the US Constitution, and it reads as follows:

'Sec. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. 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.'

You'll notice that the clause itself specifically says that representatives are not protected in the case of a felony ... Jefferson is facing felony charges. Therefore there is no protection from arrest afforded to Jefferson by the Constitution.

The arrest and search doesn't appear to be in question with this latest ruling despite Jefferson's attempts to have all charges dropped because of the clause. The issue is the paperwork seized from his office that authorities say prove their case against Jefferson.

The court ruled that Jefferson should have been given the opportunity to identify, and separate legislative documents from the rest of the paperwork in his office. Since the FBI was not allowed to view said documents, how could they confirm Jefferson wasn't lying?

Now why on earth would a court rule that a suspect has the right to tell law enforcement which documents they can view and take as evidence, and which documents they are not allowed to see? Jefferson could easily have lied in order to prevent incriminating evidence from being used against him, and the FBI would never have known it.

This ruling creates a "safe haven" for lawmakers engaging in illegal activity to hide evidence in their offices, and any warrants served by law enforcement would become null and void. Instead of it being a search ... it would become a request for evidence.

Find Law describes the clause as:

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. It does not apply to service of process in either civil or criminal cases. Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege.

Clearly our founding fathers would not have built into the Constitution any protections for lawmakers breaking the law.

"The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." - United States v. Brewster

In the case of Williamson v. United States (1908) the Supreme Court wrote:

It is not asserted that it has ever been finally settled by this court that the constitutional privilege does not prohibit the arrest and punishment of a member of Congress for the commission of any criminal offense. The contention must rest, therefore, upon the assumption that the text of the Constitution so plainly excludes all criminal prosecutions from the privilege which that instrument accords a congressman as to cause the contrary assertion to be frivolous.

Meaning, any privileges you have as a lawmaker go out the window with criminal offenses. The Supreme Court also ruled that "felony" applied to all criminal offenses because the word was commonly used during the era of our founding fathers to describe any crime.

Like I said earlier ... this is a confusing ruling at best. If lawmakers are allowed to hide evidence against them in their offices ... how can we prosecute their criminal behavior? Since law enforcement tied to the Department of Justice is not allowed to view documents in the lawmaker's office without their permission ... what law enforcement agency is allowed jurisdiction to search congressional offices to gather evidence?

This is looking less and less like a checks and balances issue between the branches of government, and more like a power grab for the legislature.


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