Redstate

A good compromise would be to always have a court-appointed "special master," a judge, present in situations like this to make certain that nothing outside the scope of the warrant is seen or surrendered. The answer cannot be that a representative's office is the equivalent of a Cayman Islands bank.

I think RedState is going over the top in it's focus on this controversy.

I disagree with Hastert's position on the matter, but it is hardly an issue of vital national importance.

If Congress thinks that they have the privilege which they claim then they should appeal the case to the Supreme Court.

As a general rule I think its a good thing for each branch to defend it's prerogatives against the others. Who knows, perhaps Congress will start to stand up for itself against the judiciary one day.

Yes, there is a left-leaning mainstream media out there doing their darnedest to make Bush look bad.

Yes, there is a left-leaning mainstream media out there doing their darnedest to make The War look bad.

Yes, there is a left-leaning mainstream media out there doing their darnedest to make Bush Appointments look bad.

Yes, there is a rabidly left internet presence out there that is doing their darnedest to attack Bush, the military, you name it.

But, sometimes, Republicans do bad things too.

The point is that one ought to support Republicans because Republicans support the PRINCIPLES that We The People share.

When Republicans start abandoning the principles that make Redstaters vote Republican in the first place... what's left?

You can't say "wait and see" or "maybe they abandoned their principles for a good reason" in response to someone abandoning a principle.

Well, I suppose you can... but it stops being effective after the third or fourth time you say it.

This is not the first time that the Republican leadership has abandoned its principles.

If there is any hope of making it the last time, they need to be taken to the woodshed.

This is a paddlin' situation under circumstances where Republicans haven't betrayed the base on fiscal conservativism and immigration, let alone one where they are very much in the process of doing so.

I think RedState is going over the top in it's focus on this controversy.

Because what this site needs is to focus on fresher stuff, like immigration, right? I'm sure that in your view, our focus would be better spent on that virgin territory, right?

Jesting, of course, but with more than a grain of truth.

1. That the Legislature is sovereign does not shield it from the laws it creates nor from those it has inherited from its forbears and the legal tradition which predates it. In fact, limited government requires all the more the the Sovereign is also a Subject, a Citizen before a King.
   
   
2. "Novelty" is irrelevant, or we should fain the morrow, for we have never beheld it.
   
   
3. RS alarmism: perhaps a less frantic pace might be in order.  Deep cleansing breath ... ahhh.  Yes, I no longer wish to depose the sovereign vagrants immediately, but will be content to wait for November.
   
   
4. What are these examples of Executive Privelege to which you refer?  

If the House is so concerned with its "ancient" prerogatives, it ought to do a better job policing itself.  Unfortunately, another "ancient" prerogative of the House is that various bums of both parties have been treated with kid gloves by their fellow members.

If this particular bum had been expelled from Congress, or at least under serious scrutiny, there would be less need for the FBI to jump into the vacuum and the current fracas could have been avoided.  If some disgraced ex-Congressman named Jefferson had his office "raided" by the FBI, no one would care.  It would run on page A-5 of the Times Picayune.

I would think it is hardly a matter of vital national importance...unless it works.

To the logical observer it would seem that everyone would realize how stupid this charge by Hastert is and it will blow over. But what if it doesnt? what if Congress atually gets the FBI to apologize, capitulate and make the search null and void?

In that case Congress will have succeeded in justifying bribery and exempting themselves from any scrutiny whatsoever regarding illegal activity. They will have not only gotten away with pooping on the Executive branch (and I still dont know who else but FBI would have carried out the warrant) but also Judicial since they, indeed, had a warrant.

The future then will have Congress waving the "Constitution card" just as frivolously and unjustifiably as Democrats wave the "Race card" whenever they see fit. And will get away with it just as easily.

THEN it is a matter of vital national importance.

because it sure ain't me.

I see that Sensenbrenner has already scheduled hearings on this. For me at least, Sensenbrenner has earned enough good will to at least be afforded a fair hearing.

Perhaps. At the same time, the President and his executive branch have been repeatedly hammered, unfairly, by the Democrats who have been claiming that they have been abusing power (over wiretaps, data mining, Guantanamo, you name it).

Whatever shortcomings the President has had, he has not deserved those attacks. Rather, he should be at least afforded a fair hearing, and not one that is stacked from the start, as the "title" of the hearing makes clear: "RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?"

Incredibly dumb. And whatever deference I would tend to believe that Sensenbrenner has earned gets washed away right there.

will have the grater impact on the party and the country, both in the near future and in the distant future? Immigration or this scandal of the moment?

If this place wants to be taken seriously as a political web site it might want to give attention to various issues in proportion to their gravity. Three months from now this particular story will be long forgotten. We will be living with the results of the current immigration debate for the rest of our lives. The peculiar thing is how little attention it gets.

Three months from now this particular story will be long forgotten.

Just like three how three months after the check kiting scandal broke (which had eerie similarities to this one), everyone had forgotten about it. Problem was (at least for the Donks), there had been an election in that three months and their guys had gotten tossed out on their ear.

Immigration is a big deal, I'm not denying it. And we've had a steady stream of stories about it. But if there's one thing that people have a bipartisan dislike for, it's institutional arrogance and the perception that their Representatives are above the law.

Standing up and saying "That's a crock" when there is, in fact, a crock before is the best way to establish credibility.

There have been many cases where it was Redstate's job to point out that when others have said "That's a crock" that what they were pointing to was not, in fact, a crock.

This is a crock.

If Redstate wishes to aspire to "national influence", calling a crock a crock is a very important step in its journey there.

In the case where politicians who deny crockitude are rarer than hens teeth, it becomes that much more important to point out that, YES! That IS a crock!

Some crocks are so crocky that they deserve no benefit of the doubt... even if some non-crocky things were mislabeled as crocks in the past.

(1) I don't disagree with you.

(2) I gave a reasoned explanation (and argument from authority, to be precise) in defense of my wariness about novelty. I'd be nice if you addressed it rather than simply pronoucing novelty irrelevant.

(4) Detainee memos and that sort of thing is what I had in mind.

it's not like RS has ignored immigration.

I don't see a lot to be gained from playing the "what if " game.

The legal consensus is that the claim of legislative privilege is weak. In the unlikely event it goes to the courts then I expect that Congress will be slapped down. If they are not slapped down then it will mean they are correct, yes?

I'll give you that.

I'll give folks a little time to duck and cover here.

waits thirty seconds

I don't know if this raid was necessary, given that Congressman Jefferson is already on videotape taking a $100,000 bribe, $90,000 of it was recovered (and gave new meaning to the terms "cold, hard cash" and "frozen assets").  The guy who gave Jefferson the bribe has plead guilty to bribing someone.

Was raiding the office necessary?  I have to wonder.  And certainly, there should at least have been an effort to reach Speaker Hastert and tell him, "The FBI believes the stuff is in Congressman Jefferson's office, and they are getting a search warrant for that location."

But the knee-jerk opposition to Hastert and Boehner is a problem - and it's not the first time we've seen knee-jerks directed at Republicans.  We may be seeing some of the first real test cases involving Article I, Section 6.  On the face of it, to my untrained eye, it looks like the DOJ is on solid ground (bribery is a felony - just ask Duke Cunningham).

In many ways, the fault lies with Congressman Jefferson.  Unlike Duke Cunningham, he has chosen to brazen this one out, and he has forced this issue.  We cannot tolerate bribery among our elected officials, but do we wish to erode the protections for Senators and Congressmen, and thereby make it easy for a President to use searches or investigations to intimidate Congress in a crisis?

There are no easy answers on this one, and knee-jerk reactions do not help.  Furthermore, when the knee-jerk reactions happen often enough, there are inevitably consequences for those who display them.

That said, there are certain areas of executive and judicial power that Congress needs to treat with similar deference, much as the executive and judicial branches need to defer to Congress in certain areas. All of these are ignored at our peril.

In terms of the NSA wiretapping investigation, this comes down to a wider view of oversight and national security.  The way that field has evolved over the years, particularly in the realm of intelligence, means that there is a risk of Congress crossing the line from legitimate oversight to illegitimate actions like the unauthorized disclosure of classified information, including methods of gathering information and sources or information.  It is known that in the past, at least one such disclosure got a source killed.

I don't know about anybody else, but I do not think that the legislative branch should have carte blanche to actively hamper intelligence operations and damage national security via unauthorized disclosures of classified information.  This is beyond a suitcase of cash, this is stuff that could get people who volunteered to protect this country killed - not to mention increasing the risk to the citizens to this country.

There are legitimate avenues to deal with something a Congressman or Senator finds offensive.  They can always defund activities (see the Boland Amendments as a case in point).  As long as they stick to that, fine.  But we cannot allow them to subvert or violate the laws of this country regarding the protection of classified information (to wit, the Espionage Act) just because they don't like the course of action the executive branch has taken on a foreign policy/national security matter, which is in the executive's purview.

Just pointing out that in the big scheme of things this story is not that big a deal.

The Republican blogs (all blogs actually) tend to favor certain types of stories over others. This is the blog world equivalent of the pretty girl missing in tropical resort type story.

This is the blog world equivalent of the pretty girl missing in tropical resort type story.

Apology first: abjectly and sorrowfully, I regret my dismissive tone, and not answering substantively.  You, and your thoughtful presentation, deserve better. I'm sorry for treating you that way.

Unfortunately, I'll have to get back to you as time permits.

I find myself thinking.....Are we a Conservative blog or a Republican blog?

I am a Conservative above all other things, including being a Republican. If Hastert, Beohner, Frist or any other Republicnas betray the values of Conservatism they deserve all the critism they get.

If they are not slapped down then it means they are correct?

No, it doesnt.

It's happend before.

Lets look at CFR. You say we should not play "what if" because we can just wait for the courts to decide. Well, that was said about CFR. You say the premise is weak and it is unlikely to pass. That too was said about CFR in the sense that Bush said there needed to be a bunch of specific points or else he would veto it. Well, it didnt and he didnt.

So now we are stuck with a piece of unconstitutional legislation hoping for the courts to decide the glaringly obvious.

I wish I could live in the world where I dont have to think about the worst possible, and most unlikely, scenario to come about. Unfortunately that seems to happen all the time.

Can't argue with that point, but it is the prevalent attitude everywhere in government. The White House and Senate have it in spades. Not to mention the courts.

I'd find your argument that the people at large will punish the GOP for this more persuasive if it were not for the fact the people I see blowing a gasket are almost all on the right.

I seriously doubt that the Democrats will be able to make hay out of this, since they will have to call attention to Jefferson and Pelosi in doing so.

That said, the initial evidentiary basis for the search and investigation appears to be well founded. As with every investigation, the progression of time will enable a provision of more information with which to formulate a sound judgment. However, that factor alone is cause for careful literalistic treading, even if only to prevent a rush to judgment. That includes both for Jefferson's charges and Hastert's claim. After all, that is a pillar of our legal system and way of life.

As for opinion, legislative and intergovernmental intrusions are always moments of great concern. However, we have to soundly and intellectually evaluate each incident on the facts. As for now, this seems a warranted investigatory tool. Naturally, if I were Hastert my process actions would be similar (not the editorializing), if only to make note of the seriousness with which that type of action is received. As for some of the stronger feelings, treating this as the beginning of some new Absolutism by surrounding it with platitudes about the President's Executive Branch intrusions is just disingenuous and misleading.  

I am a guest here and appreciate the opportunity to comment. Overall, in the way of RS stories, I have seen nothing illegitimate or spurious. While I have not been here long, this theme emerging as a guiding principal and frankly it is what attracts me to this forum. The editing is accomplished admirably and in good taste. I say, let that continue.

that if the Supreme Court says that something is constitutional, or unconstitutional, then that something is constitutional, or unconstitutional, as a matter of law. I'm simply stating facts, no value judgement implied.

I wish I could live in the world where I dont have to think about the worst possible, and most unlikely, scenario to come about.

As a lot of other countries which have tried to mimic us have found, setting up a republic is the easy part. Keeping it is the hard part. Keeping it requires an engaged citizenry who do wonder and worry about the worst possible outomes.

I know what you mean by stating the technical fact that if SCOTUS rules it is or isnt Constitutional as a matter of law. Unfortunately I have seen a number of occasions where I disagree with SCOTUS. In fact there are occasions where I cant believe how SCOTUS could go against what seems to be obviously unconstitutional.

And then when you have justices who think they should be looking to foreign law to interpret the Constitution it makes it that much worse.

I see nothing in the original post that states a clear argument as to why a duly appointed law enforcement agency cannot serve a search warrant on a Legislative member with clear evidence of having committed a felony.  Legislative predominance or not.

As to point #3, I find these sorts of arguments a bit condescending.  People in general seem to trot our the "mob" meme when many other disagree with their position.  For example, EU elites praise democracy when the vote goes their way, and decry "populism" when it doesn't.  I don't see a mob here, I see many individuals voicing dismay at what they perceive as arrogance by their party's leaders.  To imply that they would view it differently if only they thought about it carefully seems elitist to me.

maybe not a special master but an outside review team of Justice officials.  They were protected six ways from Sunday.

You know, Kos is right about one thing on this subject.  He writes, " Jefferson is innocent until proven guilty -- in a court of law. In the court of politics, perception is reality and he's not looking so hot right now."  Quoting Kos may get me in trouble around here but he is spot on.  

The same goes for Hastert.  Here is an opportunity to destroy, repeat, DESTROY Dem talking points that they spent tens of millions of dollars and countless manhours developing and what does he do?  He removes Jefferson from the news and instead puts HIMSELF on it as the poster boy for corruption.

As for the "saturday night raid" malarkey, that isnt what scares me.  Not at all.  What scares me and should you my friend, is the novelty of a Congressman getting a properly executed Court order and disregarding it.  That is scary.  If our duly elected representatives don't want to obey the rule of  law, why should I?  Or you?  Or Uncle Phil?  

You claim of a mob mentality.  I disagree wholeheartedly.  This was the last straw for a lot of us.  Congressional hubris has been boiling over in both conservative and liberal circles.  A lot of us see it in local as well as national politics.  When you have the leaders of the conservatives and the liberals basically flipping John Q. Public off someone has to say they gotta go.  

Should RS be out there leading the charge?  If not us, who?  If not now, when?  I say lead or follow, but get out of the way.

And I think that points to a great deal of institutional arrogance on the part of the courts. Frankly I'm pleased that some people in Congress have cracked open a copy of the Constitution. They are misreading it, but thats better IMO then not reading it at all.

Just because the FBI has never conducted a search in a Congressman's office before doesn't mean that they shouldn't be allowed to search there (with a judicial search warrant) when one Congressman is caught flagrantly accepting a bribe.

It's Hastert who is over the top on this one--even Pelosi was willing to "throw Jefferson under the bus" by asking him to resign from the House committee. Isn't it the job of the FBI to investigate crime suspects, even if they happen to be Congressmen?

Even from a strictly partisan point of view, Hastert's actions are stupid--even more stupid than if he tried to prevent a Republican congressman's office from being searched. We've seen Tom DeLay indicted and Duke Cunningham convicted, and they resigned. Pat Kennedy (D) nearly runs over a police officer while drunk, Cynthia Johnson (D) slugs a police officer, and so far they've gotten away with it, and now another Democrat is accused of taking bribes. What's wrong with letting justice take its course? If the FBI finds additional evidence against Jefferson, he could be indicted--if not, he may walk, but why should Hastert try to save Jefferson?

From a moral point of view, it looks like "Congressmen are above the law", just like President Nixon's claims of "executive privilege"

in the early 1970's looked like "Presidents are above the law".

Yes, Nancy, there is corruption in Congress, on both sides of the aisle. There are also good honest members of Congress on both sides of the aisle, who might disagree on policy but are not criminals. Let's let the judicial system weed out the corrupt ones, and not try to protect bribe-takers, and make the whole Congress look corrupt.

Why does it seem that it isnt necessarily the U.S. Constitution that they've cracked open?

:-)

Congress could do the honors itself and impeach, but they aren't doing that, even with the corruption being caught on tape.

We've all been waiting for a purging for a while. Corruption is obviously the current issue at hand, but it's quite intertwined with dramatically increased spending. Furthermore it's a two-party issue - we can't throw the bums out because we'd be replacing them with more bums in most cases. Both Redstaters and probably the majority of Americans want to see some resignations, maybe even some arrests. Careers must end.

Our fathers intended for checks and balances even though they prefered the legislature to have the power. The checks and balances were for reasons like this. We have seen corruption case after corruption case for months. Furthermore, it's often legal. Americans are looking for corruption but hoping that legality doesn't get in the way. It further bothers them that even if they do throw the bum in their district out, the new guy will not represent their views and values. Does this mean we should further erode Congress' powers? No.

Congress can keep their power. They could even begin campaigning to take back powers from the executive branch, perhaps even with the blessing of the President. But here is the problem, they don't WANT that power. More accurately, they don't want the responsibility. If I'm wrong, please name the Congressman who are leading the impeachment charge against their fellow corrupt Congressmen. Congress wants to spend and blame deficits on the President. They want to take bribes but not face consequences. They demand attention, but don't take action. Granted it's a little better under Boehner, but he isn't leading impeachments either.

Meanwhile, AG Alberto Gonzo (This is my new nickname for him - it reminds me of the muppets) has decided to DO something. This something is not unconstitutional. Maybe it violates some implied rule of respect, but Denny Hasbeen has never tried to earn that respect. Therefore, I'm not willing to grant it.

I don't know if this raid was necessary, given that Congressman Jefferson is already on videotape taking a $100,000 bribe, $90,000 of it was recovered (and gave new meaning to the terms "cold, hard cash" and "frozen assets").  The guy who gave Jefferson the bribe has plead guilty to bribing someone.

Was raiding the office necessary?  I have to wonder.

This is ridiculous. Law enforcement doesn't just quit collecting evidence and go home to have a cold six just because they think that they might have enough evidence to convict someone. They want to collect as much evidence as they can.

And certainly, there should at least have been an effort to reach Speaker Hastert and tell him, "The FBI believes the stuff is in Congressman Jefferson's office, and they are getting a search warrant for that location."

Why? What if the warrant was related to Hastert? What if Hastert tells Jefferson and he hides or destroys evidence? You and I certainly wouldn't be getting any courtesy calls about search warrants ahead of time. There is a reason for that... they don't want the evidence to disappear.

But the knee-jerk opposition to Hastert and Boehner is a problem - and it's not the first time we've seen knee-jerks directed at Republicans.  We may be seeing some of the first real test cases involving Article I, Section 6.  On the face of it, to my untrained eye, it looks like the DOJ is on solid ground (bribery is a felony - just ask Duke Cunningham)?

There are no easy answers on this one, and knee-jerk reactions do not help.  Furthermore, when the knee-jerk reactions happen often enough, there are inevitably consequences for those who display them.

Characterizing any position not in agreement with yours as a "knee-jerk reaction" isn't helpful either. The same characterization could just as easily be made of those on the other side as well. I trust it wouldn't be true in that case, either.

I dunno if I'd take SCOTUS' weord as law (forgive the pun). They are human and prone to some serious screwups throughout its history. The latest being the emminent domain ruling, I'd think. I can't imagine anyone thinking a city can take property from one private person and giving it to another as being constitutional.....

Jefferson is only a pawn in this so-called "scandal".  What the lasting impact of this portends is the culture of the Washington establishment.  Do you really think this issue will be long forgotten in three months if Hastert, Pelosi and company succeed in preventing future search warrants from being executed against members of Congress in similar circumstances?  This will only open the door to new waves of corruption, as their offices will become conclaves of congressional immunity.

The president has ordered the records the DOJ seized to be sealed, according to the Associated Press.

I don't think this will necessarily end next week's congressional hearings into executive authority. I knew this was about to get nasty, and apparently so did the White House.

What the frell?

What the frelling frell?

Have to be the courts that give their stamp of approval, either. The President is much more likely to do it.

into executive authority for whatever reason. This shows three branches of seperate but co-equal insanity.

The President still isn't listening either...

...head, but here goes anyway...

(1) "...should be accorded undue deference..."...except when in commission of or in process of destroying evidence a crime under the law.

"...should be viewed with suspicion it is the Executive..."...or the Legislature, when legislators are caught on tape accepting bribes, or even more egregiously so, may have diverted rescue resources during Hurricane Katrina to aid all unwittingly in retrieving and protecting ill-gotten gains.

Unless you are referring to the section of American Political Tradition taught by Old Man Daley or Edwin Edwards.

(2)"The novelty of the [raid]" is certainly matched by the novelty of the outrage that precipitated it.

Here's hoping Sensenbrenner's hearings produces surprises (to the Committee, that is) not unlike then AG-Ashcroft presenting the 9/11 Commission with Commissioner Gorelick's "Wall" memo.

And it certainly troubles me that Congressmen who may be on the cusp of a bribery indictment can sit in committee in judgement on the law enforcement officers investigating them.  Be on the lookout for brooms and paintbrushes.

Not unlike the 9/11 Commissioners culpable in pre9/11 intel and enforcement failures sitting in judgement on the current administration, or having access to source evidence implicating them.

(3)"peculiar claims of executive privilege", said claims were overturned by which Circuit Court when?

The first of the choice quotes would apply when "legitimate legislative activity" encompasses "bribe-seeking, bribe-taking, and covering up of said -seeking and -taking", umless that is just redundant.

--furious

I understand why you're in the minority.

As you duly note, you appeal to the authority of Burke.  Always shaky ground, the appeal to authority in this case is weakened by two factors: 1) the link between Burke's admonition against changing the structure of government and a case of corruption and 2) is this really a change even if it is novel?  

As for the first point, calling this a fundamental change in the relationship between the Executive and the Legislature is really a stretch, I think.  It's a lone Congressman accused of a crime, refusing to allow the legal process to take its course.  

Yes, there may be a case in the future over NSA surveillance or some other leak, in which Legislative action is involved.  Having acceded in this real case would not provide a precedent in that hypothethical one.  It's crying wolf, or perhaps a red herring, to proclaim a Constitutional struggle over this.

And for the second point, the fact that there are exceptions listed for when and how the Executive may enforce the laws on members of Congress means that in all other circumstances, they should be enforced.  That it has never required, until now, actually treating a member of Congress as a citizen would be treated, shows not the arrogation of the Executive but the abasement of the Legislature.

The House banking scandal confirmed what people already thought:  Congressmen take advantage of their office to give themselves financial perks, such as midnight pay raises and "overdraft" privileges.  As annoying as these were to voters, they fit within the common wisdom about what goes on in Washington.  The extent of the House banking abuses were a mild surprise in that it was a "new" revelation, so the voters whacked the incumbents in the next election.

Now you have both parties circling the wagons, claiming esoteric Constitutional principles that voters see through as bald attempts to cover up evidence of guilt following revelations of bribery cash hidden in freezers.  

Don't tell me the voters are going to forget this in 6 months.  Abramoff and Delay can be brushed aside as political prosecutions; Duke Cunningham and William Jefferson are crooks abusing public trust to scam money.  Until Denny Hastert made it universal, it was a couple bad apples in both parties.  

Now the voters rightfully ask: wtf is going on here? Is this just the tip of the iceberg?

Maybe national politics is really more like pro wrestling than armed combat.  The combatants take turns "winning" after lots of snarling and name-calling, and then they all go out to dinner with the referee and split the gate receipts

to get the President to put a 45-day "seal" on the subpoenaed material.  I presume that's for time to get a Supreme Court decision.

I may have missed it, but what choice did Justice have in this matter, other than to let Rep. Jefferson continue to ignore the court order?  Wait for him to destroy evidence?

and admit to a decisive and emotional reaction. The disdain is best checked by the counter of a reasonable defense. There just haven't been voices challenging us to be more thoughtful about it, so the conclusion looks all too obvious.

Sen Leahy likes to say that the Supreme Court is the ultimate check. If we grant instead that it is the Legislature which is the ultimate among equals, does that get us to the notion that they should be immune from particular prosecutorial powers of the Executive when engaged in enforcing the law against law-maker-breakers?

Is there a valid reason why we should suspect that the Executive has ulterior motives? Otherwise, aren't they duty bound to enforce the law without prejudice?

It is very hard to resist the observation that the Congress sure can dish it out but they can't take it; that they are rarely held to account for the ostentatious use of their power, as they regularly condemn others from the superiority of their dais. So yes, there is a sordid aspect to my reaction.

So, instead of backing the FBI and saying this was completely justified, we are now in the first step down a path in the wrong direction.

A path I feared we would go down.

Nice.

An impartial judge who received more information than you or I thought it was.

In many ways, the fault lies with Congressman Jefferson.

The fault for Hastert's screw up lies entirely with Hastert. How long has he known the FBI had a subpoena? What has he done to assist the FBI? Apparently nothing. What arrogance.

There was also the MIchigan university decision where SCOTUS found the word 'diversity" in their version of the Constitution.

Also, even in a unanimous decision we are talking about 9 peoples opinion on the Constitution. Considering there is often dissent that can be down to 5..out of how many million?

So, yes, the decision must be followed as rule of law, but it doesnt make it "Constitutional" as a matter of fact.

Jon made the comment that the legal basis is weak and the courts will most likely smack it down.

My use of CFR as a comparison was to show that a lot of people expected Bush to veto it because its Constitutionality was weak (and because he even said he would). Then afterword (and during) people even said that if there is something unconstitutional the courts will surely take care of it. Actually, now that I think of it, Bush himself said that, citing it as a reason for why he ignored his own stipulations and signed it.

It just shows that we've been here before, facing the possibility of a very unconstitutional outcome where logic did not prevail.

Just when I think these guys can't go lower...

Apparently, politics really does trump justice in this country these days.

how many small issues have to occur before we admit we have a big issue?    

Would such a stink be rising if the Executive Branch were not already been dealing with the NSA issues?  Which is in a small way, related to the detainee issue?  

And would the target be so big on Congress if they weren't making every effort to bend over backwards to say that illegal immigrants weren't criminals?

As straws go, it is not too big, but this is a last straw for some people. I gave up on the current Administration and Congress last year over the bankruptcy bill, but $100 gas vouchers and illegal immigrant amnesty just further add fuel to the fire.

Perception is everything in politics and how can Congress be screaming about dealing with corruption one month and the next be complaining when someone gets treated like any other good, God fearing, red-blooded criminal?

Have equal weight.

Both are capable of bringing great ruin upon this nation.  And both have the potential immadiate impact of fracturing the party (especially when happening simultaneously as they are).

This is not something to ignore.  This is another step down a slippery slope that has only 1 end -- our "elected" legislators being above the law and in office for life.

A local government thinks it can confiscate homes and give them to a private developer who wants to build a hotel/mall/whatever?

Then it'll just go before the court because the owners of those homes don't want to give them up and the local government will get slapped down.

And if they don't get slapped down, it'll mean they're wrong.  Right?

Right?

You make an interesting argument from general political theory, but it is too general to have much persuasive force here.  Here are my reasons:

1.   Accepting dubitante the notion of legislative "sovereignty," the fact is that the legislature is free, if it deems it appropriate, to adopt a statute forbidding the execution of search warrants on federal legislative offices.  No such statute has ever been adopted.  In all events, far from conferring "sovereignty" -- in the sense of being immune from the application of general law, as English kings had once claimed they were -- the Constitutional structure deems the "people" to be the entity in which such "sovereignty" is lodged.  (See Preamble, and Amends. IX and X.) That is simply another way of saying that no individual institution of the federal government, let alone any individual office holder, can claim "sovereignty" in the only sense that would advance your argument.  
   
2.   Far from conferring "sovereignty" on the Congress as an institution, the Constitution instead confers on it "all legislative Powers" (art. 1, sec. 1).  The Drafters were, of course, familiar with English history, and in particular the struggle between the Crown and Parliament for priority.  That history is repleat with efforts by the Crown to dominate Parliament, by any number of devices.  If the Drafters wanted to grant broad immunities to Congress from incursions on its "sovereignty" or "priority," as you phrase it, they could certainly have done so.  They did not.  
   
4.   Quite the contrary, Article 1, Section 6 provides a very lmiited immunity to members or Congress:  "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."  Similarly, while the 4th Amendment specifies certain criteria for the issuance of warrants generally, and evidences a concern for the protection of the "right of the people to be secure in their persons, houses, papers and effects," there is nothing to suggest that the offices of members of Congress enjoy any greater protection under the Constitution that the "people" generally.
   
5.   Bribery was a felony at the time of the adoption of the Constitution, and is so today.  Thus, even the limited immunity granted to Congressmen under art. 1, sec. 6 is inapplicable to Rep. Jefferson by its terms.  Members of Congress have often been convicted of bribery offenses  --  Rep. Cunningham most recently, and before him a long line of disgraced and dishonest legislators (those with longer memories will recall the "Abscam" 6 -- one senator and five representatives -- who were prosecuted successfully in the EDNY, for example).  And, of course, nothing in art. 1, sec. 6, even purports to exempt Congressional offices from searches of any king, let alone the general reach of the criminal law including the power to search any office or location pursuant to warrant.  
   
7.   Absent any Constitutional or statutory immunity privileging the offices of individual congressmen from the application of general law, the conclusion necessarily follows that those offices do not enjoy any such exemption.  
   
8.   As for the power of the Executive to take action to search a congressional office for evidence of a felony where, as here, probable cause plainly exists, Article 2 of the Constitution enjoins the President to "take Care that the Laws be faithfully executed ..."  In seeking evidence of crime generally, and more specifically in obtaining the issuance of a search warrant upon a showing of probable cause, as here, the President is doing precisely what the Constitution directs him to do.  
   
9.   While the Supreme Court has had occasion to interpret the Speech and Debate Clause from time to time, the Court has never held that members of Congress enjoy the sort of immunity from routine legal process that some members are demanding today.  
   
10.  In order for your argument from general politcal theory to have any weight, one would have to find support for it in the "penumbras" of the various Constitutional provisions cited above.  I take it as a given that no one at RS wants to get into "penumbras."  
    
11.   Lacking any basis in the Constitution or laws of the United States, the claims that the search of Congressman Jefferson's office pursuant to a validly issued search warrant are baseless.   Far from there being any "mob mentality" at work here, the simple fact is that nothing supports Congressman Jefferson's complaint about the search of his office.  

To say that there should have been an effort to reach Speaker Hastert prior to serving the search warrant defies credulity. Jefferson ignored that subpoena for eight months and the Speaker (or the Congress) made no attempt to force him to comply.  Further, the House General Counsel was served with a subpoena, and actually prepared the documents and computer discs, but then refused to turn them over.  With the House General Counsel involved, Hastert had to know what was going on here.  Yet he made no attempt to force Jefferson to comply with the subpoena.  He had to know that the next step would be the issuance of a search warrant.

The only knee-jerk response has been that made by Hastert and Pelosi.  Saner members, such as Senator David Vitter of Louisiana and Rep. Barbara Cubin of Wyoming are criticizing them for sending the wrong message, one that leads to the conclusion that they are protecting their own from valid criminal investigations.

The American people won't take kindly to a congressman using his public office to conceal evidence of bribery or other felonies.  But how do you think the public will react to those elected officials who are protecting him, whether in the name of "separation of powers", or the "speech and debate" clause, or "history"?

Yale law professors say so, and so do I.  Where that leads, it leads.

for those who seem appalled by all this.

Would you support Congress being allowed to subpeona  White Staffers during a potentially criminal investigation?

I hope Jefferson goes to jail. He's a crook and he should face his punishment.  But at the same time I am concerned with allowing the Executive branch to search congresscritters legislative offices.  I think that IN THE FUTURE that could be used for political purposes.

(Presumably you meant White House Staffers, of course)

Congress should be allowed to subpoena anyone it "wants" in order to satisfy their legislative responsibilities.  Intervening in the middle of a criminal investigation is of questionable wisdom (not to mention utility), but Congress' subpoena power only has a few restrictions, n'est-ce pas?

With a signed warrant, the Executive can search anywhere it "wants."  Even the hyper-paranoid Constitutional-overreach police (me) can see that it's the Executive branch's job to prosecute crimes, whereever they lead.

at its peril if there might be criminal charges.  The object pleads the 5th and is then given immunity in order to get the testimony before Congress.  Good argument that this is "fruit of a poisoned tree" and cannot then be used in subsequent criminal proceedings.  As I recall, this is pretty much what happened with Oliver North.

...in front of the right judge...

Congress has no authority to confer immunity from state prosecutions, or federal executive prosecutions for that matter.  It's a different branch of government.

"Fruit of the poison tree" is irrelevant because although the information might be public knowledge, that in no way satisfies the people of the several states or the United States as a whole.  One's "Day in Court" cuts both ways---one's personal vindication and one's peers' duly legislated will, executed and judged accordingly.

"Cooling off period" = "losing momentum period"

President Bush; "I didn't really mean it."

But at the same time I am concerned with allowing the Executive branch to search congresscritters legislative offices.  I think that IN THE FUTURE that could be used for political purposes.

And if it ever is used for political purposes, the citizens of our country, of both parties, will be justifiably outraged. That would likely lead to a quick impeachment.  In no way does this case does lead to what you're proposing is a possibility without extreme national outrage.

rather, it was a political one about form. I have to say he has a point, too. Sure, the DOJ was within the bounds of the law when it searched the congressman's office. The constitutional argument is a crock. Nonetheless, it is fairly routine to take precautions when politically sensitive investigations, arrests, and searches are made lest the suspect feign persecution immediately.

I think notification of the Speaker wouldn't have impeded the investigation and might have mitigated some of the vitriol. It wasn't legally required, but probably would have been the smart thing to do from a PR standpoint, which unfortunately does enter into the picture.

The information from the immunized testimony cannot be used in prosecution.  The prosecution MAY, if possible, develop information from sources other than the immunized testimony and proceed with that, but they are then confronted with the object's taking the 5th to them.  Consequently, they must have other sources from which to develop the evidence.  In the kinds of cases we're looking at here, not an easy thing to do, since most political operatives do understand that loose lips sink ships.

They already showed much too much deference because of the politics. If I was in his position, there is no way I would get 9 months to ignore a subpoena. I wouldn't get the subpoena at all. I wouldn't even get a phone call. The police would just show up with their warrant whenever they wanted.

What really ticks me off here is that we apparently have 535 people in Congress that think they are Lords and Ladies. The law is for the common-folk. It doesn't have to apply to them. It's just there to keep us in line, after all.

(1) Yes the people are ultimately sovereign, but, this being a republic not a democracy, that sovereignty is delegated -- delegated first of all to the legislative assemblies of the country, the first of which is Congress.

(5), (7), and (9) Pray tell, where have I said or implied that members of Congress should be immune from bribery charges? In fact my introductory paragraph specifically abjured such nonsense. It is strange to be lectured on points I myself made.

The general thrust of your points -- that I am defending Rep. Jefferson, a man who is on-tape receiving $100,000, $90,000 of which was found in his freezer -- can only derive from a misreading of my argument.

You complain that my arguments are "too general to have much persuasive force." Fine. They were designed to be general -- general as in my general sense of the editorial tone of the website, which concerned me. I was not defending Jefferson, nor even Hastert and the others.

...and lots of, like, lawyers and judges and stuff...

...but I'm talking about a new legal theory that would hold that one COULD be incriminated by agreeing to testify to Congress... because Congress doesn't have the legal authority to confer prosecutorial immunity, nor to compel the executive to do... well, anything.  A closed session would be the only way to preserve the sanctity of "things told to Congress."

the Executive is able to get the public OUTRAGED! Then they will willingly see the Executive trample over the Legislature with glee.  History is full of such stories.

...the gallows is the good hearts of our neighbors, like the judges who sign warrants...  This slippery slope exists today, but the preservation of law and order has been judged to outweigh this slippery slope argument by the establishment of a separation of powers.

...however, as long as Jefferson is still in Congress, he should get copies of his papers back ASAP...

I am just as disgusted as you. Nonetheless, this type deference is shown, more now than in the past, just to head off the phony martyrdom that masks what you identified, a belief that the rule of law does not apply to those elected to represent us. In the current political reality of D.C., public relations trumps any statute.

No, we wouldn't get the heads up about the imminent arrest of a loved one.

And if we called "amnesty" a "guest worker program" we would expect to be laughed out of the room.

And we wouldn't claim to want law enforcement while we encourage criminality.

And we wouldn't keep any stolen money in a freezer.

I see a lot of outrage here at what Hastert has done, and understand it. What perplexes me is why anyone thinks this differs in any way from the arrogance the Senate demonstrated today? When an elected body tells people it is perfectly fine to violate immigration laws, to use forged documents, to steal identities, and to commit numerous other felonies, why should we be surprised when a co-equal elected body decides its members aren't subject to the same rules as the rest of us?

The wheels came of the United States today. The Senate basically ratified lawlessness, the House said it gets special privileges in matters of criminality, and the White House openly supported the former and enabled the latter.

Yes, this is a rant, but I don't see why anyone would be surprised that the House thinks it is our Master, because today the Senate said this is not a nation of laws. The only people who are expected to obey our laws are the poor saps once known as "citizens." I'm sorry, but refer to me as a "subject" now because the House talking points had one thing correct: the situation in pre-1776 England is applicable.

On second thought, I agree with you.

I didn't say that Congress' act immunized the object from prosecution.  I said that Congress by conferring immunization in order to get testimony in spite of the 5th, made that testimony inaccessible to the state or federal prosecutor.

And with that I tire.

it is hardly an issue of vital national importance.

An issue which effects the balance of power between the Congress, the Executive Branch, and the Courts is not of vital national interest? Surely you jest. this is precedent setting. And therefore needs to be approached carefully. I agree Congress should long ago have addressed the problem of Jefferson not submitting to the supenos, but they didn't. Hence a constitutional crisis is upon us.

they should appeal the case to the Supreme Court.

Again, surely you jest? You want Congress to further embolden the concept of an imperial judiciary which has the power to determine what powers Congress has? Okay, so right now the court probably leans to the right, so you'll get the decision you want. But that is the way the left uses the courts: appoint judges who vote the way you want them to, and hand them carefully crafted cases to get them to use fiats to change the laws to the way you think they ought to have been enacted. Sorry, that's not a methodology I ever want to see our side embrace.

As a general rule I think its a good thing for each branch to defend it's prerogatives against the others.

Okay, this one is spot on, but it isn't consistent with your SC paragraph.

Congress got itself into this minefield, the problem is to get them out without destroying the foundational documents of our country while preserving the need for real justice.

more obvious effect is not to say that it will have the graver effect. If you swin through the pirahna infested waters to avoid spike pit you are just as dead.

If you don't see a lot of value in it, then stay off the political blogs. Politics is all about the "what if" game, only it's not a game. You put up a thought, and say "what if we change _," what consequences does that have. The better you are able to predict good and bad consequences, the better you are able to succeed in improving your country.

Timewise you may be correct. As for stinkers, there have been way too many of those lately for my taste:

Kelo

Emminent Domain

CFR

...

it was redacted from the released documents. So we know steps were taken, we just don't know what steps. And we don't know what the risks of destruction of evidence were. Still, nine months gave him plenty of time to hide the evidence...

Sorry, I don't see asking someone to resign from a single committee, no matter how important that committee is, as throwing someone under the bus. Going to his office with all the leaders of your party and saying "Resign now or we turn you over to the tender mercies of the Ethics committee with orders to televise the entire event for all the world to see" would be throwing him under the bus. (Not a bad defensive move either.) Resigning from a committee is more like a slap on the wrist with a wet noodle.

on a difficult topic.

Although I think your citing the Boland amendments actually works against you. There were so many of them, at so many different times, that it was difficult to have a sustained foreign policy on the matter.

As I noted elsewhere, we don't really know what actions were taken, as that information has been redacted from the released documents. I'm not sure sufficient safeguards were taken, but neither am I sure they weren't. And I certainly sympathize with FBI agents who followed the previously working arrangement of asking the court to subpeno the documents and then the Congressman turns them over in a timely fashion, only to be told to stuff it. Jefferson's actions were just as precedent breaking as the FBI's, and at least the FBI's are in reaction to that, not just out of the blue.

This is ridiculous. Law enforcement doesn't just quit collecting evidence and go home to have a cold six just because they think that they might have enough evidence to convict someone. They want to collect as much evidence as they can

No, but they are required to respect jurisdictional boundaries and Congressional, Judicial, and Executive perogatives. There would be holy h*ll to pay if the FBI raided another branch of the government involved in secret security issues. The proper actions need to be taken on both sides. As I stated in response to the previous post, we don't know whether those actions were taken, and it is possible they were. But that doesn't make it a ridiculous point to raise.

Why? What if the warrant was related to Hastert? What if Hastert tells Jefferson and he hides or destroys evidence? You and I certainly wouldn't be getting any courtesy calls about search warrants ahead of time. There is a reason for that... they don't want the evidence to disappear.

A valid point in a time sensitive scenario. However, in this one the subpeno has been outstanding for nine months against the principle person with the ability to destroy said documents. If he hasn't already destroyed them, they likely weren't in danger from Hastert (or another appropriate House member if Hastert were a potential target) being alerted.

Characterizing any position not in agreement with yours as a "knee-jerk reaction" isn't helpful either. The same characterization could just as easily be made of those on the other side as well. I trust it wouldn't be true in that case, either.

Yet by posting things like "ridiculous" and "obviously not precedent setting" that is precisely the image I see projected in some posts: knee-jerk. As in, "only a fool couldn't see this is the right thing to do."

It is possible to think Jefferson should be shot as quickly as possible (by legal authorities, not assasins) to save the Republic from further embaressment and still see problems with the current course of action. To not recognize it as precedent setting when this is the first time in 219 years that it has been done is not to deal with reality: it is precedent setting. That doesn't mean it is the wrong precedent to set, only that we need to be careful and thoughtful about how we set it. That it wasn't abused in a given situation doesn't mean that it isn't potentially abusive in all situations. We need to consider as many possible outcomes of this as possible, not merely the ones related to this particular incident.

I think the site is organizationally chartered to increase Republican members of government and only incidentally conservative, because Reps tend to be more conservative (in the modern understanding of the term) than Dems.

I however share your sentiment.

I concur with all but your last line.

Even if we don't respect Hastert, we do need to respect the instutition he represents. Whether we are the citizens he is supposed to be representing, or the AG charged with enforcing the law.

But yes, Congress has brought this upon itself by its own failure to police its ranks.

Campaign Finance Reform.

ttp://thomas.loc.gov/cgi-bin/bdquery/z?d107:H.R.2356:

fit the facts, in this case the actual form of goverment framed by the Constitution.  

I realize that you do not claim that members of Congress are immune from prosecution on criminal charges.  But you claim that they are immune from the ordinary process of criminal procedure, which includes having one's office subjected to searches authorized by warrant.  Under the Constitution, such searches can and are only conducted by the Executive power.  Where (A) the Constitution affords only limited immunity from the greater imposition on a legislator's ability to carry out his legislative function -- i.e, the immunity from arrest in art. 1, sec. 6; and (B) where that immunity by its terms would not apply here (bribery being a felony), one cannot reasonably extrapolate from the text or structure of the Constitution a broad immunity to lesser forms of intrusion on a legislator's ability to carry out the legislative function (i.e., an immunity from searches pursuant to warrant).  

Yet that is what your argument tried to do, mainly by brushing aside the text of the Constitution and substituting instead general notions of "republic," "republican form of government," "legislative sovereignty" and the like.  It is too general because it purports to be a valid description of the American structure of government framed by the Constitution, when in fact it is a very poor fit with the actual terms of the Constitution.  So what should govern here -- the evidence, in terms of the actual form of government framed by the Constitution; or generalities supposedly drawn from it (your theory of sovereignty) that don't really fit well with it?  

Points 5, 7, and 9 establish all of that, and I take it you do not disagree.  

The problem with any argument at the level of generality of the one you make here is that, at the same level of generality, one can turn it around to prove almost anything.  What you have to say about legislative priority, etc., makes a lot of sense in some contexts, but not this one.

You said "What scares me and should you my friend, is the novelty of a Congressman getting a properly executed Court order and disregarding it." That is the bothersome part for me also.  

 If a common citizen ignores or refuses to comply with a subpoena, they are sanctioned or jailed. If authorities obtain a warrant to search a person's home, it is executed. Why was Jefferson allowed to thumb his nose in the first place?

The denizens of Washington think their offices - offices that belong to us and not them - are sacrosanct and immune from justice. They are not immune from our justice system.

Republicans swallowing this hook have made a huge mistake. I venture to say, it will come back to haunt them.

But you claim that they are immune from the ordinary process of criminal procedure.

I do not claim that.

Yet that is what your argument tried to do, mainly by brushing aside the text of the Constitution and substituting instead general notions of "republic," "republican form of government," "legislative sovereignty" and the like.

This is a strange opposition you have set up, between the Constitution and republican theory. In fact the very phrase "republican form of government" appears in the Constitution, Article IV, Sec. 4: "The United States shall guarantee to every state in this union a republican form of government." We cannot make any sense of this clause without reference to the republican theory of government. Thus my remarks on legislative priority, while perhaps controversial, are certainly germane to the questions at hand (questions, incidentally, which do not include whether or not Rep. Jefferson should be prosecuted).

Note again: I am not defending Jefferson. I am not defending Hastert. My purpose was only to counsel caution when the issue of a conflict between Legislature and Executive becomes embroiled in more sordid politics.

One other quibble: You write, "Under the Constitution, such searches can and are only conducted by the Executive power." I'm not sure exactly what you mean by "such searches," but it is beyond all doubt that Congress has a very robust power to investigate, and to investigate with the tools of compulsion of testimony and documents, of investigator immunity, and of investigative autonomy. Until 1857 Congress regularly employed the power to punish contempt -- a power the Court has never gainsayed, and which has been, since 1857, referred to the courts only by the discretion of Congress itself. Since the Court (see McGrain v. Daugherty [1927]) has subsumed the power of inquiry under the legislative power, Congress's power to investigate is, formally, unlimited -- except in the sense that it must relate to possible legislation.

Everybody knows everybody's position on immigration.  Restating the same arguments over and over again is not intellectually satisfying. Either you believe the wall must come first (I do) or the wall won't work (perfectly). Either you believe we can or can't remove the illegals from our sovereign state, and if we are to remove them, it must be done instantly, or over time by systemic solutions. Sure we should be calling our representatives repeatedly to ensure their focus, but this issue (and the budget, and the commitment to spreading democracy and free market economics, &c.) need clarification and discussion too.

This conversation is not about Jefferson, or about an FBI executed warrant. It is about expectations we have of and for our elected representatives, and about our commitment to following through to get the Congress we want and deserve.

concern.  I reread your original post that got this all going, and see that you avoid taking any firm position on the key issues.  Your concern about the need to preserve legislative priority and to avoid intrusions in its affairs is, of course, quite valid.  But a generalized concern of that sort doesn't say much about the propriety/legality of the Saturday Night Raid or even by your hypo about a possible search for evidence relating to the NSA leaks.    

You say:  "This is a strange opposition you have set up, between the Constitution and republican theory."  It's not an opposition, but a priority:  the only "republican theory" that matters has to be one that conforms to the "evidence," in this case being the actual provisions of the Constitution relevant to the institutional rights or privileges being claimed.  The "claim" here -- which I see you have not made -- is that the execution of a search warrant on a Congressional office runs afoul of the Speech and Debate Clause, or more general notions of separation of powers.  Such a search could run afoul of the Constitution in two basic ways-- either the Constitution forbids the Executive to conduct such a search of an office of the Legislative branch at all, or more narrowly, that the Constitution requires special procedures (perhaps executed by officials from the Legislative branch) in carrying it out.  I see that, in his statement today, Speaker Hastert appears to back away from the first claim, and adopts a version of the second, narrower one.  

For the reasons I've explained, I don't think either claim is supported by Art. 1, Sec. 6 of the Constitution, nor do I think that more general notions of separation of powers can be invoked to create a broader immunity for members of Congress than that contemplated by Art. 1, Sec. 6.