No good arguments for Jefferson
Jun 1 2006 11:33 AM

No good arguments for Jefferson
Jun 1 2006 11:33 AM

By BPhillips

Some members of Congress are now accusing the White House of
overstepping their authority in searching the offices of Rep. William
Jefferson (D-LA).

But their arguments lack constitutionality and common sense.

The Bush Administration is now at odds with some House Republicans
over the constitutionality of the search of Louisianan Democratic
Congressman William Jefferson's office executed by the FBI. Rep.
James Sensenbrenner recently held hearings on the matter and invited a
couple law professors and even a former Reagan Justice official to
speak about what they called a violation of separation of powers
doctrine by the Administration.

I don't think the arguments hold up on either constitutional grounds
or common sense.

First, the constitutional. The debate centers around the
interpretation of the "Speech and Debate Clause". In Article I,
Section 6, the Constitution says specifically:

The Senators and Representatives. 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.

So without equivocation, we at least know that the Constitution makes
an explicit exception for felonies, of which the Congressman is
suspected.

In 1951, Justice Frankfurter created a "legitimacy standard"
pertaining to legislative acts covered by Speech and Debate in Tenney
v Brandhove saying:

We come then to the question whether from the pleadings it appears
that the defendants were acting in the sphere of legitimate
legislative activity.

Subsequent cases have tried to better define a "legitimate legislative
activity" to differentiate what is and is not protected by the Speech
and Debate Clause. In 1972, Justice White said in Gravel v United
States:

Legislative acts are not all-encompassing. The heart of the Clause is
speech or debate in either House. Insofar as the Clause is construed
to reach other matters, they must be an integral part of the
deliberative and communicative processes by which Members participate
in committee and House proceedings with respect to the consideration
and passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the jurisdiction of
either House.

Earlier, in 1971, Justice Burger said in US v Brewster:

Taking a bribe is, obviously, no part of the legislative process or
function; it is not a legislative act. It is not, by any conceivable
interpretation, an act performed as a part of or even incidental to
the role of a legislator . . . Nor is inquiry into a legislative act
or the motivation for a legislative act necessary to a prosecution
under this statute or this indictment. When a bribe is taken, it does
not matter whether the promise for which the bribe was given was for
the performance of a legislative act as here or, as in Johnson, for
use of a Congressman's influence with the Executive Branch.

So from that we know 1) speech and debate is not protected from
felonious acts, 2) the activity itself must be a "legitimate"
deliberative legislative activity and 3) "legislative activity" must
be "an integral part of the deliberative and communicative
processes.with respect to the consideration and passage or rejection
of proposed legislation".

Burger says in Brewster that even if we all agree that voting on a
piece of legislation constitutes a "legislative act", inquiries into
the motivation of a vote do not violate the Speech and Debate Clause,
and he specifically cites bribery as being one such circumstance.
Given what we know about the Jefferson case, it would appear to fall
in line with this decision.

Second, let's use some common sense. Supporters of the Congressional
position are claiming that since protected files (drafts of speeches,
conference reports, etc.) are simply located in the office, the search
violated the Speech and Debate Clause because protected materials
might inadvertently (and thus unconstitutionally) be searched. That's
ridiculous.

Under that standard, a Congressmen would simply need to carry such
files around with him at all times or strategically locate them right
next to evidence of wrong doing in order to shield himself from any
and all searches. Their argument would essentially create "spheres of
protection" around Congressmen so long as they keep a draft floor
speech within reach. Kryptonite in your pocket, if you will.

Are we to say that had Jefferson kept his $90,000 in a file cabinet
instead of the freezer, the evidence would have then been
inadmissible? This totally lacks any common sense and is an egregious
abuse of the Constitution.

So let's use the jurisprudential standard of deciding for ourselves
what is a "legitimate" and "rational" use of investigative power; i.e.
what our law enforcement officials do every day.

There is overwhelming evidence that a Congressman used his position to
solicit bribes in return for favorable advocacy within our democratic
institutions. Is it not wholly legitimate and rational to search the
places where he conducted this very business? It's not like being
arrested for DWI or soliciting a prostitute. The very thing Jefferson
is accused of is directly related to his position and the business he
conducts as a Congressman. Where else would you have the FBI search?

Look at similar investigations. New York Attorney General Eliot
Spitzer pored over thousands of documents relating to securities fraud
in New York. Prosecutors had to pack up boxes and boxes of documents
and materials in order to hold Enron chiefs Ken Lay and Jeff Skilling
accountable. Why then is it unreasonable for the FBI to treat a
Congressman the same exact way any other law enforcement service would
treat Joe Schmoe Embezzler?

We are all under the law. Even those who make them.

http://www.townhall.com/blogs/c-log/BPhillips/story/2006/06/01/199532.html



--
"Science is the record of dead religions." -- Oscar Wilde

"There are no absolute certainties in this universe. A man must try to
whip order into a yelping pack of probabilities, and uniform success is
impossible." -- Jack Vance

"Civilization is the interval between Ice Ages." -- Will Durant.

"War is God's way of teaching Americans geography" -- Ambrose Bierce

"Progress is the increasing control of the environment by life.
--Will Durant

Joseph R. Darancette
daranc@NOSPAMverizon.net

No good arguments for Jefferson
Jun 1 2006 11:33 AM

By BPhillips

Some members of Congress are now accusing the White House of
overstepping their authority in searching the offices of Rep. William
Jefferson (D-LA).

But their arguments lack constitutionality and common sense.

The Bush Administration is now at odds with some House Republicans
over the constitutionality of the search of Louisianan Democratic
Congressman William Jefferson's office executed by the FBI. Rep.
James Sensenbrenner recently held hearings on the matter and invited a
couple law professors and even a former Reagan Justice official to
speak about what they called a violation of separation of powers
doctrine by the Administration.

I don't think the arguments hold up on either constitutional grounds
or common sense.

First, the constitutional. The debate centers around the
interpretation of the "Speech and Debate Clause". In Article I,
Section 6, the Constitution says specifically:

The Senators and Representatives... 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.

So without equivocation, we at least know that the Constitution makes
an explicit exception for felonies, of which the Congressman is
suspected.

In 1951, Justice Frankfurter created a "legitimacy standard"
pertaining to legislative acts covered by Speech and Debate in Tenney
v Brandhove saying:

We come then to the question whether from the pleadings it appears
that the defendants were acting in the sphere of legitimate
legislative activity.

Subsequent cases have tried to better define a "legitimate legislative
activity" to differentiate what is and is not protected by the Speech
and Debate Clause. In 1972, Justice White said in Gravel v United
States:

Legislative acts are not all-encompassing. The heart of the Clause is
speech or debate in either House. Insofar as the Clause is construed
to reach other matters, they must be an integral part of the
deliberative and communicative processes by which Members participate
in committee and House proceedings with respect to the consideration
and passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the jurisdiction of
either House.

Earlier, in 1971, Justice Burger said in US v Brewster:

Taking a bribe is, obviously, no part of the legislative process or
function; it is not a legislative act. It is not, by any conceivable
interpretation, an act performed as a part of or even incidental to
the role of a legislator . . . Nor is inquiry into a legislative act
or the motivation for a legislative act necessary to a prosecution
under this statute or this indictment. When a bribe is taken, it does
not matter whether the promise for which the bribe was given was for
the performance of a legislative act as here or, as in Johnson, for
use of a Congressman's influence with the Executive Branch.

So from that we know 1) speech and debate is not protected from
felonious acts, 2) the activity itself must be a "legitimate"
deliberative legislative activity and 3) "legislative activity" must
be "an integral part of the deliberative and communicative
processes...with respect to the consideration and passage or rejection
of proposed legislation".

Burger says in Brewster that even if we all agree that voting on a
piece of legislation constitutes a "legislative act", inquiries into
the motivation of a vote do not violate the Speech and Debate Clause,
and he specifically cites bribery as being one such circumstance.
Given what we know about the Jefferson case, it would appear to fall
in line with this decision.

Second, let's use some common sense. Supporters of the Congressional
position are claiming that since protected files (drafts of speeches,
conference reports, etc.) are simply located in the office, the search
violated the Speech and Debate Clause because protected materials
might inadvertently (and thus unconstitutionally) be searched. That's
ridiculous.

Under that standard, a Congressmen would simply need to carry such
files around with him at all times or strategically locate them right
next to evidence of wrong doing in order to shield himself from any
and all searches. Their argument would essentially create "spheres of
protection" around Congressmen so long as they keep a draft floor
speech within reach. Kryptonite in your pocket, if you will.

Are we to say that had Jefferson kept his $90,000 in a file cabinet
instead of the freezer, the evidence would have then been
inadmissible? This totally lacks any common sense and is an egregious
abuse of the Constitution.

So let's use the jurisprudential standard of deciding for ourselves
what is a "legitimate" and "rational" use of investigative power; i.e.
what our law enforcement officials do every day.

There is overwhelming evidence that a Congressman used his position to
solicit bribes in return for favorable advocacy within our democratic
institutions. Is it not wholly legitimate and rational to search the
places where he conducted this very business? It's not like being
arrested for DWI or soliciting a prostitute. The very thing Jefferson
is accused of is directly related to his position and the business he
conducts as a Congressman. Where else would you have the FBI search?

Look at similar investigations. New York Attorney General Eliot
Spitzer pored over thousands of documents relating to securities fraud
in New York. Prosecutors had to pack up boxes and boxes of documents
and materials in order to hold Enron chiefs Ken Lay and Jeff Skilling
accountable. Why then is it unreasonable for the FBI to treat a
Congressman the same exact way any other law enforcement service would
treat Joe Schmoe Embezzler?

We are all under the law. Even those who make them.

http://www.townhall.com/blogs/c-log/BPhillips/story/2006/06/01/199532.html



--
"Science is the record of dead religions." -- Oscar Wilde

"There are no absolute certainties in this universe. A man must try to
whip order into a yelping pack of probabilities, and uniform success is
impossible." -- Jack Vance

"Civilization is the interval between Ice Ages." -- Will Durant.

"War is God's way of teaching Americans geography" -- Ambrose Bierce

"Progress is the increasing control of the environment by life.
--Will Durant

Joseph R. Darancette
daranc@NOSPAMverizon.net

No good arguments for Jefferson
Jun 1 2006 11:33 AM

By BPhillips

Some members of Congress are now accusing the White House of
overstepping their authority in searching the offices of Rep. William
Jefferson (D-LA).

But their arguments lack constitutionality and common sense.

The Bush Administration is now at odds with some House Republicans
over the constitutionality of the search of Louisianan Democratic
Congressman William Jefferson's office executed by the FBI. Rep.
James Sensenbrenner recently held hearings on the matter and invited a
couple law professors and even a former Reagan Justice official to
speak about what they called a violation of separation of powers
doctrine by the Administration.

I don't think the arguments hold up on either constitutional grounds
or common sense.

No good arguments for Jefferson
Jun 1 2006 11:33 AM

By BPhillips

Some members of Congress are now accusing the White House of
overstepping their authority in searching the offices of Rep. William
Jefferson (D-LA).

But their arguments lack constitutionality and common sense.

The Bush Administration is now at odds with some House Republicans
over the constitutionality of the search of Louisianan Democratic
Congressman William Jefferson’s office executed by the FBI. Rep.
James Sensenbrenner recently held hearings on the matter and invited a
couple law professors and even a former Reagan Justice official to
speak about what they called a violation of separation of powers
doctrine by the Administration.

I don’t think the arguments hold up on either constitutional grounds
or common sense.

First, the constitutional. The debate centers around the
interpretation of the “Speech and Debate Clause”. In Article I,
Section 6, the Constitution says specifically:

The Senators and Representatives… 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.

So without equivocation, we at least know that the Constitution makes
an explicit exception for felonies, of which the Congressman is
suspected.

In 1951, Justice Frankfurter created a “legitimacy standard”
pertaining to legislative acts covered by Speech and Debate in Tenney
v Brandhove saying:

We come then to the question whether from the pleadings it appears
that the defendants were acting in the sphere of legitimate
legislative activity.

Subsequent cases have tried to better define a “legitimate legislative
activity” to differentiate what is and is not protected by the Speech
and Debate Clause. In 1972, Justice White said in Gravel v United
States:

Legislative acts are not all-encompassing. The heart of the Clause is
speech or debate in either House. Insofar as the Clause is construed
to reach other matters, they must be an integral part of the
deliberative and communicative processes by which Members participate
in committee and House proceedings with respect to the consideration
and passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the jurisdiction of
either House.

Earlier, in 1971, Justice Burger said in US v Brewster:

Taking a bribe is, obviously, no part of the legislative process or
function; it is not a legislative act. It is not, by any conceivable
interpretation, an act performed as a part of or even incidental to
the role of a legislator . . . Nor is inquiry into a legislative act
or the motivation for a legislative act necessary to a prosecution
under this statute or this indictment. When a bribe is taken, it does
not matter whether the promise for which the bribe was given was for
the performance of a legislative act as here or, as in Johnson, for
use of a Congressman's influence with the Executive Branch.

So from that we know 1) speech and debate is not protected from
felonious acts, 2) the activity itself must be a “legitimate”
deliberative legislative activity and 3) “legislative activity” must
be “an integral part of the deliberative and communicative
processes…with respect to the consideration and passage or rejection
of proposed legislation”.

Burger says in Brewster that even if we all agree that voting on a
piece of legislation constitutes a “legislative act”, inquiries into
the motivation of a vote do not violate the Speech and Debate Clause,
and he specifically cites bribery as being one such circumstance.
Given what we know about the Jefferson case, it would appear to fall
in line with this decision.

Second, let’s use some common sense. Supporters of the Congressional
position are claiming that since protected files (drafts of speeches,
conference reports, etc.) are simply located in the office, the search
violated the Speech and Debate Clause because protected materials
might inadvertently (and thus unconstitutionally) be searched. That’s
ridiculous.

Under that standard, a Congressmen would simply need to carry such
files around with him at all times or strategically locate them right
next to evidence of wrong doing in order to shield himself from any
and all searches. Their argument would essentially create “spheres of
protection” around Congressmen so long as they keep a draft floor
speech within reach. Kryptonite in your pocket, if you will.

Are we to say that had Jefferson kept his $90,000 in a file cabinet
instead of the freezer, the evidence would have then been
inadmissible? This totally lacks any common sense and is an egregious
abuse of the Constitution.

So let’s use the jurisprudential standard of deciding for ourselves
what is a “legitimate” and “rational” use of investigative power; i.e.
what our law enforcement officials do every day.

There is overwhelming evidence that a Congressman used his position to
solicit bribes in return for favorable advocacy within our democratic
institutions. Is it not wholly legitimate and rational to search the
places where he conducted this very business? It’s not like being
arrested for DWI or soliciting a prostitute. The very thing Jefferson
is accused of is directly related to his position and the business he
conducts as a Congressman. Where else would you have the FBI search?

Look at similar investigations. New York Attorney General Eliot
Spitzer pored over thousands of documents relating to securities fraud
in New York. Prosecutors had to pack up boxes and boxes of documents
and materials in order to hold Enron chiefs Ken Lay and Jeff Skilling
accountable. Why then is it unreasonable for the FBI to treat a
Congressman the same exact way any other law enforcement service would
treat Joe Schmoe Embezzler?

We are all under the law. Even those who make them.

http://www.townhall.com/blogs/c-log/BPhillips/story/2006/06/01/199532.html

No good arguments for Jefferson
Jun 1 2006 11:33 AM
By BPhillips
Some members of Congress are now accusing the White House of
overstepping their authority in searching the offices of Rep. William
Jefferson (D-LA).
But their arguments lack constitutionality and common sense.