Centerfield

The Hill search brouhaha

I had really not planned on posting about this, partially because I have little to add to what others have said (Volokh; Bull Moose et al), but mainly because I remain bemused as to how a story so patently absurd has attained such coverage outside of the summer news slump. I'm piqued to add a few words, though, by comments made on (and reported by) this morning's Washington Journal. The "controversy" regarding whether the FBI can execute a search warrant approved by a Federal Judge on a Congressman's office continues to clank along; the House Judiciary Committee will shortly convene a hearing portentously titled "RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?," while the Wall Street Journal has sadly chosen to weigh in on the wrong side. Meanwhile, on the Senate side, even Bill Frist - not exactly known for his ability to sense the political winds - has figured out that this is a loser of an issue (although, contra Joe, I'm not convinced that he has, in fact, performed a frist-flop on the issue). One recalls the counsel of Tocqueville, who lamented that:

On entering the House of Representatives of Washington one is struck by the vulgar demeanor of that great assembly. The eye frequently does not discover a man of celebrity within its wall . . . [the House is] remarkable for its vulgarity and its poverty of talent."

We can once again add to Tocqueville's dire assesment charges of venality and self-absorbtion; given that it is hard to take seriously the claim of immunity.

The claims, it seems to me, are twofold. Firstly, there is the generic separation of powers argument (there is also the closely-related "comity between the branches argument," which will get you some mileage, but not enough). That argument would have some credibility if this was an invasion purely by one branch, but fails given the judicial approval of the warrant. Nor is it immediatley clear to me why this will have the supposedly chilling effect on debate in Congress: Jefferson's offices were searched after he ignored a subpoena and on presentment of probable cause to a judge, not because he criticized the President.

Second, there is the Art. I §6 argument (members of Congress are "priveleged from Arrest during their Attendance at the session of their respective Houses, and in going to and returning from the same," and may not be interrogated by any other governmental entity for something said in debate). This fails at first glance. Even if the clause applied, which by its own terms it does not (a search is not an arrest; cf. Amdt. IV, requiring warrants for "the place to be searched, and the persons . . . to be seized"), the clause contains exemptions: it is not a defense against "Treason, Felony and Breach of the Peace." (It's interesting, by the way, to compare the lack of interest on the House's part in using this clause to defend Rep. McKinney with the present hyperactivity in using it to defend -- I was going to say Rep. Jefferson, but that would concede entirely too much, i.e., that the present fluster is about protecting Rep. Jefferson. I doubt that it is. It is about members protecting themselves). Justice Story puts it even more bluntly: members cannot be arrested "except for crimes"; II Commentaries §856. Story noted that "[t]he privilege of the peers of the British parliament [is] to be free from arrest, in civil cases," id. at §858 (emphasis added), and noted that the wording of the exemption (for treason, felony and breach of peace) "are the same as those, in which the exception to the privilege of parliament is usually expressed at the common law, and was doubtless borrowed from that source," id. at §862. As if to hammer home the point, Story concludes that the exemption extends to any indictable offence: "the phrase 'breach of the peace' would seem to extend to all indictable offence, as well those, which are, in fact, attended with force and violence."

Justice Holmes remarked that a page of history was worth a volume of logic: in this case, both point to the same result, which is that Congress cannot indulge in criminal behaviour and expect to be protected by a clause which is designed to ensure their constituents are not despoiled of their representation. "[T]he[ §6] rights and privileges are, in truth, the rights and privileges of their constituents, and for their benefit and security, rather than the rights and privileges of the member for his own benefit and security" (Story, supra, §847). Congress is the instrument of the people, and the protections that devolve on them protect their actions in their official capacity, not what they do on their private time. While the WSJ is surely correct that "Congress is uniquely protected [by the clause] . . . in its act of legislating," it isn't as clear to me as it evidently is to the WSJ that the act of legislating - as opposed to hiding evidence of criminal activity - is threatened here.

I am generally quite poorly-disposed towards the executive branch vs. the Congress; although this is a minority position in America at large, let alone the GOP, I'm a Congress geek, I believe in the prima inter pares status of legislatures, and I simply couldn't disagree more with Dick Cheney vis-a-vis the appropriate balance of powers between executive and legislative. I wouldn't go as far as the WSJ suggests; I don't want a feeble Presidency, but I do (in general terms) want a pre-Jacksonian one. None-the-less, I would submit that the bad guys in this story are not an overreaching executive branch, but members of the legislature who are letting down the institution in which they serve. The real scandal here is not whether or not Congress is protected by Art. I §6, but why the House has not acted pursuant to its §5 power to expel Congressman Jefferson.

What thinks the Centerfield commentariat?

Posted by Simon at May 30, 2006 11:09 AM