Capitol Hill Not A Safe House For Crooked Congressmen After All!

Taken directly from Article I, Section 6 of the U.S. Constitution:

"(Members of Congress) 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'll be 7-2 in SCOTUS. Roberts and Alito will vote against.

 

It WAS a felony, though, wasn't it?

 

It'll be closer than that. A lot is going to depend on how hinky (or not) the warrant is. Because this is an important separation-of-powers case in the context of the claims that the current Executive is making about its unitary powers in wartime. We shall see what we shall see. But the gentleman from Louisiana's going to jail before Bob Ney or Tom Delay will, and that's pretty damn strange.

 

SCOTUS, in the mid 70s, voted that the speech and debate clause did not apply to William Proxmire's Golden Fleece Award press releases. Based on pretty much every SCOTUS precedent you will find, the speech and debate clause has a very narrow meaning tailored toward official and required actions. SCOTUS would rule 9-0 that a Congressional office is not immune from a validly obtained search warrant. They may find that the search in question did not have enough protections against executive branch intereference (i.e. that a member of the House police, rather the FBI should have sifted through the documents), but they aren't going to turn Congressional offices into criminally immune storage sheds.

And under any scenario, Thomas is the most likely to uphold the warrant. He would write that the Founders intended the S&D clause was intended to protect just that -- speech and debate -- and that unless the executive/judicial branch is attempting to use your required duties as a Congressman (speech on the floor, work in committee hearings, etc.) against you in court, you have no other immunity.

 

PDB --
I find myself in agreement with Your Holiness on virtually every point.
No doubt that this makes it to the Nine Wise People, though, is there?

 

I think it depends quite a bit on the Court of Appeals opinion. If the CoA opinion goes off either deep end (SaD clause gives blanket protections or completely ignores/laughs off separation of powers questions), then the Supremes definitely take it up. But if the CoA writes an opinion that allows a valid search warrant to be served on a Congressional office, recognizes the separation of powers questions and comes to a reasonable conclusion....I would easily see the Nine Wise Guys/Gals basically feeling that the CoA opinion said what they would have said and denying cert. If I remember correctly, similiar Constitutional claims were made by various Congressmen in ABSCAM and SCOTUS didn't take them up.

 

There is no important seperation of powers argument at all, it's a non issue. What power of the legislative branch did the executive or judicial usurp? Answer that question with an enumerated power found in the constitution and you're on your way to making an argument. And please No Speech and Debate Clause bullshit.

 

Precedent, 'yab.
What's to prevent this administration from getting a FISA warrant -- let's assume they even believe in them for a moment -- and doing a sneak 'n peek for purely political purposes?
I hold no brief for Jefferson -- Hide the money in the Caymans, dude. Not with the ground chuck -- but I think the question has been made quite broader by the actions of this government elsewhere.