From Radley Balko, writing at Reason’s Hit and Run:
You have lawmakers who feel they’re above the law. And who at the same time are criminalizing anything and everything they find tacky, repugnant, or immoral.
Forgive the lofty language, but you know what? This isn’t healthy for our republic.
Nor children or other living things — though ironically, it is always in the children’s name that criminalization of “anything and everything they find tacky, repugnant, or immoral” is done in the first place.
Good thing outsized self-regard doesn’t weigh very much, or else any time Congress convened, DC would be at risk of turning into a giant black hole.
And not just figuratively this time, either.
(h/t IP; thanks to Betty)
It’s not congress that immunizes itself from searches of their offices and computers. It’s the constitution’s speech and debate clause.
So the Constitution allows criminal activity by members of Congress to be shielded from investigation if the evidence is contained on a computer in his office? Even if the executive branch seeks permission — as it did in the William Jefferson case — from the federal courts?
I thought I was a cynic, but I got nothing on markel! I mean, I understand that taxation is a form of theft, and earmarks a form of bribery, but not even I would go so far as to say that outright bribery and theft are protected Congressional activities.
Yo Jeff – this right here is your fault from an earlier thread.
http://unrepentantgeek.mee.nu/tonight_we_dine_in_…
I had to share.
Feel they’re above the law? O R[ad]L[e]Y?
‘Cause I feel that too. Doesn’t fucking work.
Marx!
I’ve concluded that, while they may not inhabit the same body (and I have no certainty they don’t), markel, in every way that counts, is actus.
– Its noticable that the types of perps the various levels of law enforcers and/or institutional managers; school, rent-a-cops, park rangers ect. are willing to do battle with as of lately seems to be targets incapable of striking back. Kids that draw laser guns are reasonably harmless, and are viciously disarmed/interogated/tried/judged/adjudicated and incarcerated with breath taking elan and speed,whereas all manner of real criminals such as drug dealers, Illegal aliens, alien felons, or terrorists, not so much. In fact on those occasions where such people are apprehended for various misdemeanors like multiple murders, we wring our hands and worry to the rafters about defending their constitutional rights, speedy and fair trials, and let defense lawyers eviscerate the effectiveness of the entire court system, such that, depending on Political Correctness standards, Public Opinion, Media reaction, Partisan politics, and most importantly, the “Celeb” status of the perp, we decide to apply a wide range of punishment from nothing at all to mild, and tender.
– The Left has always fought against stiff punishments for social misdeeds, stating their belief that punishment is not a deterent. for decades they have been using every social tool available, including law breaking, to limit, reduce, and eliminate tough punishments in the courts, which assures that their contentions will be correct. Weak, eneffectial punishment for crimes is certainly no deterent. All of which leaves the questions:
– Are we becoming a society of Wusses, deballed by the steady drumbeat of PussyNazi’s demeaning any sort of Male based bravery.
– Or maybe to many dudes are forgetting the power of the invincible – MAN-CARD! Oye’
Except that only applies to their official acts. Unless you believe taking bribes is a part of the office…
“Except that only applies to their official acts.”
True, and it’s up to the courts to decide how much protection to afford their official computers. But it’s not a law that congress passed that created this idea. It’s the constitution.
Congresspersons conceiving themselves above the law ? Surely you jest.
Bob Filner at Dulles, shoving the arm of the baggage person (I believe it was a woman) when she attempted to bar him from restricted areas.
Last incident like this one, Short Fuse Filner shouted words to the effect …”I can do any (damn) thing I want…Don’t you know I’m a Congressman?”
I hope the individual involved doesn’t drop the charges.
I could get behind some anti Bobby Filner Arrogance legislation of some anti Harry Reid Stupidity legislation etc. (just kidding, I think).
– I seem to remember an “event” between a Black congress person, and a Capital security guard. A prominent Senators nephew, himself a junior Senator, comes close to having wreckless driving DUI charge, and resukting accident, swept under the rug. Of course that same upper-class “privaledged” Senior Senator set the whole tone for modern Congressional arrogance with his minor manslaughter of a unimportant socialite all those decades ago. So what else is new.
According to 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. 379
The actual court cases are cited in the footnotes. Maybe markel should read up on it a bit.
Told you he looked nasty, Joseph. WAS I RIGHT OR WAS I RIGHT?
Would it be OK if I threw in an Anti Ted Stevens Senile Ignorance legislation?
For the fairness!
Search warrants issued upon probable cause by a competent Federal court are valid for the US Capitol, just as they are for the White House.
“The actual court cases are cited in the footnotes. Maybe markel should read up on it a bit.”
Whats to read up on? I’m talking about searches. Not arrest. But even on arrest: thats a feature of the constitution as interpreted by courts. Not something congress came up with for itself. The holy founding fathers said “privileged from arrest.” Did they intend to piss you all off? Could be.
markel – actus long ago caused me to eat my ILARDC card. I have been a lawyer for 14 years … don;t make me wish to eat my JD diploma too.
I think we will all get to see the SCOTUS neatly dispose of this overbroad reading of said clause. I believe you are indulging in the same error.
The search was made pursuant to a criminal search warrant procured from a federal judge – this wasn’t some ambush by a Jacksonian Era process server/second to a duel…
Whose pissed? Now, tell me, did these founding fathers of which you speak intend to shield the legislative from all arrests? How about all searches?
Who’s, but only because I’m apparently very angry.
I miss preview.
While I appreciate the spirit of what Balko’s saying, there are good reasons for the legislative privilege afforded by the Speech or Debate Clause, and the governmental liability (and individual immunity) extended under the Federal Tort Claims Act. They both help allow government to function.
So the Constitution allows criminal activity by members of Congress to be shielded from investigation if the evidence is contained on a computer in his office?
No, but it allows for a determination of what materials are legislatively privileged. In the subject case, the computer search was fine (it was the paper search that was a problem):
Given the Department of Justice’s voluntary freeze of its review
of the seized materials and the procedures mandated on remand
by this court in granting the Congressman’s motion for
emergency relief pending appeal, the imaging and keyword
search of the Congressman’s computer hard drives and
electronic media exposed no legislative material to the
Executive, and therefore did not violate the Speech or Debate
Clause, but the review of the Congressman’s paper files when
the search was executed exposed legislative material to the
Executive and accordingly violated the Clause.
Decision is linked here (direct hyperlink omitted above due to apparent spam block).
“I think we will all get to see the SCOTUS neatly dispose of this overbroad reading of said clause. I believe you are indulging in the same error.”
I’m not saying the clause is as overbroad as some claim it is. I’m saying that it’s a constitutional feature interpreted by courts, not something congress has created for itself unilaterally. A lawyer friend told me that a JD was basically a degree in advanced reading comprehension. So maybe you should do something about it.
But people say that search warrants issued on probable cause are going to be valid. I have this to say on the scope of the clause though: I don’t think you’re going to be able to simply seize legislative office computers or papers that have criminal and legislative materials on them, like you would be able to seize home or other computers and papers that had criminal and innocent materials on them.
This isn’t just a fourth amendment issue, but a separation of powers issue. Sure warrants may be quite valid against the white house — ignoring whatever executive privilege exists, or what its textual source may be. But that warrant is being carried out by a member of the executive branch against itself, and there are different separation of powers issues, specifically addressed by the constitutional text, once you set up the executive vs. legislative branches.
“Now, tell me, did these founding fathers of which you speak intend to shield the legislative from all arrests? ”
I have no idea what they intended. But they said “privileged from arrest.” No need to lawyer it up with fancy dancy living constitution, or let some ivy league liberal judge fuck it up. What do you think those words mean?
What I think is not as important in this case as what the courts have ruled on it, which is what I linked to.
That said, I don’t think they had intended to set up an unanswerable class. Which is what the sort of immunity you are asserting they have would give us.
“That said, I don’t think they had intended to set up an unanswerable class.”
Clearly. The text limits it to arrests during the legislative session. Thats not unanswereable.
I haven’t asserted much about the scope of their immunity. Just the source: it’s the constitution that creates some of these protections. Not congress protecting itself.
Put another way, you’re arguing a point not in contention.
Just.
Like.
actus.
“Put another way, you’re arguing a point not in contention.”
The title of the post is “double standards.” If you followed the link, you’d see Radley talking about how congress “immunizes itself.” Congress passes laws while having certain immunities. But some of those immunities are constitutional features, not congressional creations. Looks like a point in contention. But then again, I’m not really arguing it either: just pointing it out.
Here’s the Wikipedia entry on the Speech and Debate Clause in all its constitutional glory
So you’re assuming everyone here is ignorant of the speech-and-debate clause and determined to ensure we’re educated about it, while ignoring the larger point Radley made that Congress routinely places regulations on private businesses they do not impose upon themselves.
OK.
My head spins. As long as Jumpin’ Joe Naccio gets to be free after a conviction of fleecing all those pissed off people, the rich are in fact different from you and me.
Double standards? Hell yeah, why not the insulated congress? Why not the beleagured President, which has records that nosy-pokers want to see? Why bother with the little folk when you have the guns to circumvent the law?
So it’s no duh, congress members have the bucks, and they have the innoculation. The putative law be damned.
… and of course Congress places itself outside the law… wouldn’t you?
There are times when I feel
I rather not be
The one behind the wheel
I think that should be “I’d” – I’m starting to think these lyrics site are outsourced to India or something.
“So you’re assuming everyone here is ignorant of the speech-and-debate clause and determined to ensure we’re educated about it, while ignoring the larger point Radley made that Congress routinely places regulations on private businesses they do not impose upon themselves.”
Even if congress DID impose these restrictions on themselves, enforcement is an executive matter, bringing in the separation of powers issues.
So your position is that Congress is Constitutionally exempt from all laws, because any attempt to enforce them would violate separation of powers?
Yes, duels returned to the heart of the Republic! I would, indeed, applaud such…
As my Uncle Joe used to say: “Lawyers prosecute based on the law. Lawyers run for office and get to make the law. Lawyers also sit as judges of the law. That is law of, by and for the lawyers.”
In the case of Congress, it has exempted itself from workplace regulations, like OSHA, for decades. Going through the labor laws on contracts for my COR course in government, the instructor featured a good couple of hours on the various laws and regulations that Congress exempts itself from. That was in 1994 and just an overview of that topic, which would take a week or so, then, to go over in a normal law course.
Working hours, overtime, OSHA… yes Congress does that for itself even before getting to business and contract law. That is why there is a one-party State called Incumbistan in-place today. They have a different law for themselves than the poor folks in the vassal state of Electistan. I am very glad that we have emulated how various royal systems work in the Middle East and know that the Emirs are working very hard to get poor Electistanians replaced so they can have a more pliable group to rule over.
Duels? Ah, we should be so lucky that the factions in Incumbistan actually have much that they would disagree with each other to that point. Somehow, I just don’t see that happening any time soon.
“So your position is that Congress is Constitutionally exempt from all laws, because any attempt to enforce them would violate separation of powers?”
Nope. Just that the constitutional immunities are that: constitutional. Not cogressional.
I challenge markel to a duel. He/she/it is allowed to bring its wits, which in its own eyes, are quite impressive. I shall bring the weapon of my choice.
ection 6 – Compensation
(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.) (The preceding words in parentheses were modified by the 27th Amendment.) 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.
Say what?