On the 20th of May, 2006, the Executive and Judicial branches of the United States government made history when the latter issued and the former executed a search warrant of the Congressional offices of William Jefferson (D-LA).
Federal Judge Thomas Hogan, Chief Judge of the DC District Court would later agree:
The facts and questions of law presented here are indeed unprecedented. -p27
Ironically, this ruling provides all the ammunition needed to preserve the constitutional order against an Executive asserting unprecedented and unrestricted privilege against investigation by the other branches. This ruling should hearten us all as we cheer Leahy, Conyers and Waxman to the investigative finish line in the DoJ Purgegate scandal. William Jefferson may have saved the republic.
The Basics
For this discussion, the details of Representative Jefferson's alleged crimes are mostly unimportant other than that they are reasonably credible, and a normal person would be suspicious of Jefferson's activities. See the FBI's affidavit requesting the warrant here. Most famous was the alleged presence of $90,000 in cash found in Jefferson's freezer upon a search of his private residences prior to the search of his Congressional office.
The Search and Immediate Aftermath
The search was conducted on the order of Judge Thomas Hogan (appointed by Reagan in 1982). Hogan's name may trigger other memories as he also ordered Judith Miller into prison for contempt of Court at Patrick Fitzgerald's request.
It turns out the Court did place specific restrictions on the conduct of the search: A requirement for a "filter team" to do an initial sift of the seized materials, followed by the Court reviewing the documents they intended to release to the Executive branch's investigating team. The concept of the filter team is simple enough: To ensure that sensitive (and privileged) legislative documents (which were excluded from the search warrant) were not given to the Executive branch at large.
No one in the Legislative branch was notified in advance of the search. In came the FBI and Justice Department officials, and out they went with the contents of Jefferson's office.
Representative Jefferson filed suit to have the contents of his office returned to him. A bi-partisan legal group within the House of Represenatives filed an amicus curae briefing in support of Jefferson's motion. Although many of us were disappointed that Congress seemed to close ranks around a seemingly corrupt member, there are valid constitutional concerns raised by this case.
Jefferson and Congress' Arguments
- The search violated a Legislative branch privilege called "Speech or Debate" listed in the Constitution
- The search violated Separation of Powers (ie "Legislative Privilege" as an analog to Executive Privilege)
- Some other stuff by Jefferson that the court shot down and that we need not concern ourselves with (stuff like claiming the search was improper because his attorney wasn't present)
The Ruling
Here's the gold. Judge Hogan produced a 28-page ruling which, if read carefully and you change "Executive" for "Legislative" in a few places, you end up with a very compelling case for the Judiciary branch to compel the release of evidence to the Judiciary Committees to pursue their investigations.
First this though encapsulates Hogan's general feelings on the subject:
Justice Douglas once stated, "The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to." - p15
Hogan shoots down both aspects of the claim of Legislative privilege thusly:
Congress’ capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants, which are only available in relation to criminal investigations, are subject to the rigors of the Fourth Amendment, and require prior approval by the neutral third branch of government. pp16-17
Ok, so for our purpose now in the Rove/Miers testimony, there are some problems with this. First: We're dealing with a subpoena and not a search warrant, and second, the Judiciary has thus far not been involved to be that "neutral third branch." But what I find important here is that Hogan finds a branch of government is not jeopardized merely by being searched. Also, let's keep in mind regarding #1, he is shooting down a privilege that is explicitly listed in the constitution, as opposed to say, executive privilege, which appears nowhere in law before Nixon v US (1974).
The power to determine the scope of one’s own privilege is not available to any other person, including members of the co-equal branches of government[...], or the President of the United States, see Nixon, 418 U.S. at 703-05. When President Nixon asserted that "the separation of powers doctrine precludes judicial review of a President’s claim of privilege," the Supreme Court held that it is "the province and duty of this Court ‘to say what the law is’ with respect to the claim of privilege presented in this case." Nixon, 418 U.S. at 703-05 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)). In Nixon, the Court supported its conclusion regarding the executive privilege by relying upon a series of cases interpreting the explicit immunity conferred by the Speech or Debate Clause. pp1920
To reject the notion that Congress can decide for itself what is privileged, he quotes the famous Nixon ruling which showed that not even the Executive branch gets to decide the scope of its own privilege. Even better, as Hogan notes, the court in deciding against Nixon used prior jurisprudence on the subject of a claim of privilege by the Legislative branch. Which is exactly what I am doing here, in using Hogan's ruling. You might say there is precedent for how I am employing precedent. A general legal principle emerges: No branch can decide on its own what is privileged.
Indeed, it is the Judicial Branch that ascertains the requirements of the law in accordance with Article III of the Constitution. See United States v. Nixon, - p19
Bam. Judiciary decides this stuff. We told Nixon, we'll tell you too, Legislative branch.
Also, I kind of like that Hogan, a Reagan appointee is quoting the Nixon ruling. At least this ruling will protected slightly from the usual "Activist Clinton appointee legislating from the bench" nonsense.
"Absent a claim of need to protect [national security], we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide" -p21
Another good Supreme Court ruling he quotes:
As the Supreme Court has recognized, "The check-and-balance mechanism, buttressed by unfettered debate in an open society with a free press, has not encouraged abuses of power or tolerated them long when they arose. This may be explained in part because the third branch has intervened with neutral authority." Brewster, 408 U.S. at 523. -p22
So again, he, a "lowly" circuit court Federal Judge isn't going to go off on some legal tangent here and risk being labeled an "activist" - he's resting his ruling on prior Supreme Court actions, and he has (he thinks) ample grounds for believing the Judiciary branch can enable one branch to override the ordinary privileges of the other.
Also, this ruling was not appealled. Probably the only reason Jefferson wouldn't appeal is the probability of simply being laughed out of the Appellate court.
If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. - p23
The bolded part is really key. What's good for one branch must be good for the other.
Ok, so where are we? In general terms, Hogan's ruling says that the branches definitely have some level of privilege, particularly the Legislative branch since its is listed in particular, but that "Checks and Balances" is more important than "Separation of Powers" or even explicit privilege. Further, no branch gets to decide its own privilege, for that the Judiciary gets to step in and decide what is admissible and what is excluded from an investigation of one branch by another. Fine.
We have a problem here: How can the Legislative Branch invoke the involvement of the Judicial branch? This isn't a judicial subpoena issued by a Judge after an application by a Prosecutor. This is a set of elected politicians outvoting their minority committee members to investigate a President from another party. Surely the courts will not allow the Legislative branch to subpoena anything from the Executive just on a party line vote. Further, this ruling is specific to a search warrant, an item for which I know of no way for the Legislative branch to obtain, much less execute. Could congress appoint its own Special Prosecutor and some kind of police force to conduct his search warrants? Could the Sergeant-At-Arms apply for and receive a search warrant for the White House?
So, some would fear that if this came to the courts, they would simply say to Congress: "You need a search warrant, and a proper criminal investigation of these supposed misdeeds before we'll even look at your problems."
I have, I believe an answer to that, and let me set it up with one last Hogan quote:
While the search here entailed an invasion somewhat greater than usual because it took place in a congressional office certain to contain privileged legislative material, the Government has demonstrated a compelling need to conduct the search in relation to a criminal investigation involving very serious crimes, and has been unable to obtain the evidence sought through any other reasonable means. -p26
Compelling need. So to answer the problem I raised, Congress has a good response: "The very thing we are investigating is the Justice Department and the fairness of the Prosecutors. Having found reasonable cause to believe the Executive is running the Justice Department for partisan gain, shall the Judicial branch require us to seek remedy for this ill from the selfsame Justice Department?"
The idea rests on a basic conflict of interest. How could congress possibly trust such an investigation would be conducted properly? Even by demanding the President appoint a special prosecutor to investigate this matter, it would be tacitly endorsing the very Department of Justice it is suspicious of. Such a remedy is appropriate where the basic good faith of the Attorney General or President himself is reasonably assured. Here, such is the very question.
Finally, prosecutors prosecute crimes. Congress does not necessarily expect to find indictments, however the basic fairness of the prosecutorial system has never been in such question and the overriding interests of society mandate full disclosure for the public debate. Also, if the matter is not a criminal investigation, then also is a search warrant appropriate? If so, does the 4th amendment apply at all, since the search is of a branch of government, not an individual to whom the Bill of Rights applies.
Now is that a leap? I don't see how. The courts recognize the general principle of conflict of interest, and would generally not require a party to a dispute to put their faith in a Judge or Prosecutor whom they had good reason to doubt. Such would be expected to stand aside. It is the basic requirement of impartiality. Congress must take on the claims of executive privilege head on. This matter is simply too vital. If the DoJ is broken, how can Congress possibly contemplate legislative fixes without full disclosure? Clearly congress has exhausted all reasonable means of obtaining this vital information. If the subpoena is not upheld, how then shall the People resolve this? As Judge Hogan's ruling indicates, claims of absolute privilege by any branch undermine the very republic.
But the Jefferson case was unprecedented, and as such Hogan's ruling is cutting edge. Although I have fears, I also have hopes, and see in totality that the ruling says to me: "Make your case Congress, and if we agree you're not just on a pogrom, we'll get your back. - Love, the Judicial Branch" This really goes to the heart of Democracy, and I really believe the Courts won't use their usual out: "Well, impeach him if you don't like it" - because the information Congress is seeking is exactly the kind of thing they need to decide if Impeachment is appropriate. At this point, the Courts cannot pretend impeachment is some simple fix-all, and the likelihood it would fail in the Senate would doom the whole investigation to failure. No, the urgency and impossibility of other solutions should force the Courts to take this case and rule in Congress' favour, as they did with Nixon. The key is the compelling nature of the investigation. A subjective judgment perhpas, but "judging" is just what the Judicial branch does, after all.
So that's the story of how an implicated member of Congress facing prison could save the Republic.
So Congressmen Leahy and Conyers, make ready your subpoenas, and fear not the wrath of the Judicial branch. Your case is compelling and the Courts' ears are open.
Author's Note: This diary is now part of a series of diaries on the Purge affair. Readers who missed them are invited to check out my analysis of how this scandal has revealled the Republican electoral rigging efforts in How the Hell did the Democrats win in 2006 again, to see how the Fielding "Extremely Generous Offer" was legally crafted to see why Karl Rove cannot be Indicted Under the WH Offer, and finally learn how Executive Privilege is Not Absolute