May 24, 2006

Criminal, Schriminal - We're Talking PRIVILEGES Here!

Hatched by Dafydd

United States Constitution ~ Article I ~ § 6 ~ ¶ 1:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

I think it was Paul Mirengoff over on Power Line who wondered how long it would be before the blatant bribery case against Rep. William Jefferson (D-LA), was sent to the back of the bus while yet another accusation of George W. Bush's "unilateral approach to the use of [executive] authority" hopped into the driver's seat instead.

In other words, who cares whether Jefferson took hundreds of thousands of dollars in bribes... George Bush violated Congressional protocol. B'gad, but we must keep a sense of priorities here; what could possibly be more important to the republic than the privileges of members of Congress?

(It is always amusing to note, at this juncture, the etymology of the word "privilege." It comes roundabout from the Latin: privatus, private + lex legis, law or statute... a private law for a particular group of people. In this case, private law for those who pass general laws on the rest of us.)

In Culture of Oops..., we told you about Rep. Jefferson's embarassing adventure, caught on videotape accepting $100,000 from a business associate in a hotel lobby who was in fact working with the FBI in a sting operation. Searching Jefferson's house later, the FBI found $90,000 hidden in food containers in his freezer; the money was the same money that had been handed him in the hotel. We then noted:

The feds recovered $90,000 when they searched Jefferson's house; they subsequently searched his office, probably looking for the rest of the cash as well as incriminating documents -- a horrific violation of Jefferson's civil liberties, sayeth his lawyer, calling the office search "outrageous." (Yes, they already had Jefferson dead to rights; why did they need to humiliate the criminal by searching his office as well?)

Democrats and Republicans alike are up in arms. Outrageous. Astonishing. Oh, not that a congressman would be stuffing wads of cash into his briefcase; that has happened so often lately, it has become positively humdrum.

No no, Speaker of the House Denny Hastert (R-IL), House Majority Leader John Boehner (R-OH), House Minority Whip Steny Hoyer (D-MD), Deputy Majority Whip Eric Canter (R-VA), and more congressmen (and senators!) than you can shake a bag o'cash at are in full cry against "the Bush administration's assertions of executive power" in searching congressional offices for criminal cash.

Even with a warrant. Oh yes, lest we forget: Attorney General Alberto Gonzales duly obtained a warrant from a federal judge, based upon probable cause, to conduct this search. Nevertheless...

After years of quietly acceding to the Bush administration's assertions of executive power, the Republican-led Congress hit a limit this weekend.

Resentment boiled among senior Republicans for a second day on Tuesday after a team of warrant-bearing agents from the Federal Bureau of Investigation turned up at a closed House office building on Saturday evening, demanded entry to the office of a lawmaker and spent the night going through his files.

The episode prompted cries of constitutional foul from Republicans — even though the lawmaker in question, Representative William J. Jefferson of Louisiana, is a Democrat whose involvement in a bribery case has made him an obvious partisan political target.

Now, unlike 98% of the blogosphere, neither of us here at Big Lizards is a lawyer... though Dafydd sometimes plays Philadelphia lawyer in blogposts. And we understand that caselaw can determine the actual meaning of statutes and even constitutional doctrine. But we've always thought that the essence of conservative jurisprudence was that, when the actual words used in a piece o'legislation or in the Constitution had a plain meaning, that the plain meaning should prevail.

Or maybe we misunderstood.

But it would seem that the plain meaning of "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" is that members of Congress cannot be arrested during a session, or on their way to the session or from it.

It seems a bit of a stretch to say that "privileged from arrest" means "...and you also can't search their offices." (The other part has the plain meaning that you cannot interrogate them about some speech they made.)

Logically, if we were to take their assertions of blanket immunity from search and seizure at face value, then what is the House, from Republican Speaker Hastert down to the lowliest Democratic mouse, saying?

They are saying that if Marion Barry were elected to Congress, he could sit there in his congressional office, in full view of God and Man, openly smoking crack and shooting up heroin... and the FBI, the DEA, and the Capitol Police could only stand helplessly watching. So long as he kept his stash in the office, he needn't even hide it -- because Congress has a private law that says "what happens under the Dome stays under the Dome."

The Times hints at a somewhat narrower concern: a number of House members have recently fallen afoul of corruption investigations; thus, Congress -- which Mark Twain declared America's only "native criminal class" -- may suddenly perceive a class interest in preventing the executive from searching the hollowed halls of the Capitol building or the Executive Office Building. At least, not without a warning view halloo, to give members time to "tidy up" just a skosh.

Now, I'm just a private schlub. But I think the Times, which clearly sides with the prickly House members (rather, I suspect the Times sides with whomever opposes Bush, for whatever reason), nevertheless touched it with a needle (rem acu tetigisti) when they wrote:

[General Gonzales] and other officials suggested that the search had been made necessary by a lack of response to an earlier subpoena. "We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists," Mr. Gonzales said.

Members of Congress are mindful that much of the public is not familiar with the speech and debate clause, which, among other things, requires that lawmakers be "privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." Many people may wonder why a Congressional office cannot be searched in a criminal case and what members of Congress are complaining about.

To many lawmakers, that is secondary to the larger separation-of-powers principle they see at risk.

Yup, I think that about covers it. The Lords of the District are offended that they may actually be required to suffer under the very laws they enacted for the peóns. How crass and vulgar! The "larger separation of powers principle" evidently also takes precedence over the people's business -- bills on immigration, confirmation of judges and the Director of the CIA, the war, taxes, energy exploration, and every other piece o'legislation that was let hang fire while Congress roared about laws that were a bit too universal.

The American people don't understand that. But even if you explained it to them, which do you think would concern them more: that Congressmen got their knickers in a twist over being searched (with a search warrant)? Or that Congressmen were taking massive bribes to conspire against the general welfare?

Our old pal John Boehner sums up two centures worth of privilege aroused:

"I clearly have serious concerns about what happened," Mr. Boehner said, "and whether the people at the Justice Department have looked at the Constitution."

Ah. Well, Mr. Boehner... we have serious concerns whether the Republicans in Congress have looked in a mirror recently.

Hatched by Dafydd on this day, May 24, 2006, at the time of 3:52 AM

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Updated House Speaker Dennis Hastert and House Leader John Boehner displayed a sickening amount of arrogance when they said the search of Rep. Jefferson's office was unconstitutional and that the documents retrieved at Rep. Jefferson's office should be... [Read More]

Tracked on May 24, 2006 4:16 PM

Comments

The following hissed in response by: hunter

What a tragic, missed opportunity. The Republicans could have made it clear that no one is above the law. That if a Congressman is involved in a crime, he or she will face the music like all citizens should.
Instead, Republicans are carrying water for democrats. And who are the first to demand Republicans leave office and resign and cooperate with any kind of investigation? democrats, of course.
Sometimes it seems Republicans are too stupid to govern this nation.

The above hissed in response by: hunter [TypeKey Profile Page] at May 24, 2006 4:39 AM

The following hissed in response by: tkubiak

Isn't the Constitution of the United States an amazing document. If you glace further down to Section 8 it spells out who is supposed to fix the Illegal Immigration problem. Are they? No. but they are busy preening and orating about nothing in front of TV cameras. I believe Representative Mike Pence (R-Indiana) is the only one of the 535 members of Congress who is earning his salary.

The above hissed in response by: tkubiak [TypeKey Profile Page] at May 24, 2006 5:03 AM

The following hissed in response by: dasbow

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, FELONY and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.


Isn't bribe-taking a felony? And aren't the Democratic members whining about this the same ones who want Karl Rove frog-marched FROM the White House itself?

The above hissed in response by: dasbow [TypeKey Profile Page] at May 24, 2006 6:09 AM

The following hissed in response by: Truzenzuzex

"I clearly have serious concerns about what happened," Mr. Boehner said, "and whether the people at the Justice Department have looked at the Constitution."

I have to admit, this little comment by Boener just got my day off to a huge laugh. Does anybody think he was the right pick for majority leader? I am wondering if Boehner even knows what the Constitution is for.

I still think the guy is an android Democratic plant to embarass Republicans. Karl Rove should have seen right through this. I blame Bush.

Here is a money quote from Hasteret (Via MacsMind)

"Once I have more information about this raid made available to me, I have had an opportunity to carefully consider the long-term ramifications for the Legislative Branch of this action, and I have consulted with the appropriate bipartisan leaders of the House, I expect to seek a means to restore the delicate balance of power among the branches of government that the Founders intended."

Restore the "delicate balance of power?" What is he suggesting - that we put congress critters off limits to federal law enforcement while they are at work? Well, what the heck makes them so special? Every criminal in the world wants a place that is off-limits to law enforcement.

Given Duke Cunningham and apparently Jefferson (among others), it's just crystal clear that we can trust our Congressmen with such a hidey-hole. No criminal activity here, no sir!

The more I see from guys like Boehner and Hastert, the more doubts I have about Republican politicians. Since the Democrats are happy to join right in on this one, "a pox on both their houses" seems the only appropriate response.

The above hissed in response by: Truzenzuzex [TypeKey Profile Page] at May 24, 2006 6:47 AM

The following hissed in response by: dasbow

A means to restore the delicate balance of power, Denis? How about using that Constitution that John Boner was talking about? Good grief.

The above hissed in response by: dasbow [TypeKey Profile Page] at May 24, 2006 7:04 AM

The following hissed in response by: James E. Griffin

Eyes on the long term. What we want is for Jefferson to be held accountable, not to get off on a technicality.

The congressional response has to do with how co-equal branches of government deal with each other. The House has a Sergeant at Arms. The FBI should have gone to THAT office - it's a certified LEO - and together the FBI and Sergeant at Arms take the office in question apart. Yes, Hastert has a tin ear on this, but he's not talking about the underlying crime, he's talking about procedure.

Legislatures around the country have their own rules and procedures - dating back to the colonial period and beyond - that have force of law. Yes, it can get arcane. And that was evidently what Jefferson was depending on.

Jefferson evidently believed his congressional offices were immune to a DOJ search. He forgot, or did not know, that the House Sergeant at Arms is a certified LEO - he sits on the Capital Police board! Had the FBI taken an extra step and had the warrant served by both FBI and the House Sergeant at Arms office, there'd be no question of a legal search and separation of powers.

How annoying would it be for Jefferson's lawyer to get evidence thrown out of court based on that technicality? Hopefully, a judge wouldn't fall for that, but judges have made annoying decisions before.

Again, what we want is for Jefferson to be held accountable. We don't want criminality to be obscured by an error in police procedure.

>From the website: http://usinfo.state.gov/usa/infousa/politics/legbranc/abtcong.htm

> The Sergeant at Arms maintains the order of the House under the direction of the Speaker and is the keeper of the Mace. As a member of the U.S. Capitol Police Board, the Sergeant at Arms is the chief law enforcement officer for the House and serves as Board Chairman each even year. The ceremonial and protocol duties parallel those of the Senate Sergeant at Arms and include arranging the inauguration of the President of the United States, Joint Sessions of Congress, visits to the House of heads of state, and funerals of Members of Congress. The Sergeant at Arms enforces the rules relating to the privileges of the Hall of the House, including admission to the galleries.

The above hissed in response by: James E. Griffin [TypeKey Profile Page] at May 24, 2006 7:11 AM

The following hissed in response by: The Yell

Dead on, Dafydd.

However, inUnited States v. Brewster, while continuing to assert that the clause ''must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,'' the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ''influenced in his performance of official acts in respect to his action, vote, and decision'' on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ''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 inJohnson, for use of a Congressman's influence with the Executive Branch.'' In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution.
http://caselaw.lp.findlaw.com/data/constitution/article01/21.html

if that's the law, then obviously a court may issue warrants, subpoenas, and whatever else is essential to pursuing such a licit prosecution.

In light of the hard fight many of these same Republicans gave Clinton's claims of executive privilege, this reeks to high heaven of hypocrisy.

The above hissed in response by: The Yell [TypeKey Profile Page] at May 24, 2006 7:54 AM

The following hissed in response by: MTF

The terribly infuriating thing is that the Republican congressional leadership, led by Denny Hastert, has simply handed away the political advantages of the Jefferson case. It's beyond stupid. If we were democratic Greeks we could banish this dumbo and be done with him. The congressional Republicans don't know when to simply shut the hell up!

The above hissed in response by: MTF [TypeKey Profile Page] at May 24, 2006 1:04 PM

The following hissed in response by: Terrye

Even Newt Gingrich was pissed off about this. It makes me wonder if I am missing something.

The above hissed in response by: Terrye [TypeKey Profile Page] at May 24, 2006 1:40 PM

The following hissed in response by: Don

I agree with the Congresscritters, they Feds ought to drop the case and return all the documents to Jefferson.

Particularly all that cold, hard cash. I never heard that phrase taken quite so literally by anyone before Congresscritter Jefferson taught us the true meaning of the phrase....

The above hissed in response by: Don [TypeKey Profile Page] at May 24, 2006 4:14 PM

The following hissed in response by: Don

Yup folks - It's obvious.

This case is frozen solid.....

The above hissed in response by: Don [TypeKey Profile Page] at May 24, 2006 4:16 PM

The following hissed in response by: KarmiCommunist

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Clearly, the time has come for the whole of Congress to be arrested, and most of the Congress executed!!!

1) breach of the peace n. any act which disturbs the public or even one person.

2) Breach of the peace - SNIP..."The first two are somewhat self-explanatory; it has been suggested that the third is deliberately somewhat vague. The doctrine thus established is called Congressional immunity; it arose out of the necessity to prevent a vengeful executive from arresting members of the legislative branch on a pretext to prevent them from taking actions that the executive might find to be displeasing. In recent years, this doctrine has been used to prevent members from being stopped and held for speeding on their way to sessions; this apparently is not a "breach of the peace", where as perhaps another misdemeanor such as "drunk and disorderly" might be construed to be such."

3) Breach of peace 'implies fear'...enough said, huh.

4) breach of the peace
n. any act which disturbs the public or even one person. It can include almost any criminal act causing fear or attempting intimidation, such as displaying a pistol or shouting inappropriately.
Why isn't the whole of Congress in jail right now!?!

Congress is clearly out of control, and such causes humble me to feel a *FEAR* that humble gentle me has never felt before. On the Police Department, i was allowed to kill those whom caused me to *FEAR* for my Life. The Law stated such. In Prison, no one ever complained about me killing some other Inmate, as long as i did it Lawfully. In the Army...nevermind.

Anyway, dig this, from FindLaw:

Privilege From Arrest

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege.

The "the blatant bribery case against Rep. William Jefferson (D-LA)", is most clearly not about a civil suit, and apparently there is even more evidence of Representative William Jefferson (D-LA) accepting other bribes, to a tune of over "$400,000".

The time has come for the heads of reporters, and the entire guilty portions of the Congress, to be brought before the American People!!! Bodies take up too much space, so just the heads will do, and we can sort out the beheaded innocent ones later, and say a sorry to their head.

i came out to Vote, in 2002, as a Republican. By 2004, i changed to the Libertarian Party, but still backed President Bush. From what i have been seeing, even from the MSM reports, i ain't the only who came out to Vote in 2002!!! Even the Democrats *OWN* MSM could not ignore the uproar from America's Conservatives when "W" selected Ms. Harriet Miers to the Supreme Court, and the Congress still doesn't see 'Da Karmic *SLEDGEHAMMER* over their heads over immigration. Heck, 50% of Americans are tired of paying the taxes and medicare and social security for the 50% who pay just 3.46% !!! That bottom 50% couldn't get out of the way of a mere hurricane (see "Hurricane Katrina"), if it was roaring towards them, whilst they waited at the mouth of the Mississippi River where it meets the Gulf of Mexico. BTW, " The top 50% were those individuals or couples filing jointly who earned $29,019 and up in 2003.

If those links don't work for you, then either subscribe or visit El Rushbo's site (he offers that info for free).

President Bush has offered Congress many decisions to make...like Social Security...like unfair Taxation and Tax Codes...like Health Care...like security from Foreign Enemies (see Saddam)...like immigration...like Judges...etc.

Congress is still peeing in their diapers. Congress would rather complain about the so-called 'aBuSe' heaped upon them and Rep. William Jefferson (D-LA), instead of actually doing something to help America's future. Heck, Congress would rather complain about Hayden's wiretaps, then vote for him...scheesh, what a waste. These same Congress 'pEoPlE' ignore real issues, by sticking their useless heads into the sand, and wave their "tail-feathers" over pure BS.

Well, America has more oil than the *WHOLE* Middle-East, and we are not allowed to get it. Even if we were allowed to get it, we don't have enough refiners to refine it. Yes, under the U.S. Constitution, Congress is seriously Breaching the Peace!!!

KårmiÇømmünîs†

The above hissed in response by: KarmiCommunist [TypeKey Profile Page] at May 24, 2006 5:01 PM

The following hissed in response by: Papa Ray

Speaker of the House Denny Hastert (R-IL), I knew he protested too much.

The above hissed in response by: Papa Ray [TypeKey Profile Page] at May 24, 2006 5:02 PM

The following hissed in response by: SDN

Tar. Feathers. Politician. Some assembly required.

The above hissed in response by: SDN [TypeKey Profile Page] at May 24, 2006 5:14 PM

The following hissed in response by: Papa Ray

Evidently, Is the fix already in? or someone spoke of something they knew nothing about.

OR he is, but they just don't want to confirm or verify.

Smoke and Mirrors.

Papa Ray

The above hissed in response by: Papa Ray [TypeKey Profile Page] at May 24, 2006 5:41 PM

The following hissed in response by: Dick E

Dafydd-

...preventing the executive from searching the hollowed (sic) halls of the Capitol building...

Interesting Freudian slip.

Or was it?

The above hissed in response by: Dick E [TypeKey Profile Page] at May 24, 2006 10:25 PM

The following hissed in response by: Dafydd ab Hugh

Dick E:

You'll never really know, will you? <g>

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at May 25, 2006 3:38 AM

The following hissed in response by: Terrye

monkyboy:

Is there any proof of that or is the usual crap from the left?

BTW, Cheney is not personally responsible for everything every employee of Halliburton ever did.

What is interesting about this is that a Democratic Congressman is caught stealing red handed and the only thing a good Democrat can think to do is cast about for some unrelated crap about a Republican and throw it out there.

The above hissed in response by: Terrye [TypeKey Profile Page] at May 25, 2006 3:43 AM

The following hissed in response by: Dafydd ab Hugh

Monkeyboy:

So what will he be charged with?

Accepting a bribe, obviously.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at May 25, 2006 3:35 PM

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