That's what they seem to want - but it isn't what they should get.
Lawblogger Pejman Yousefzadeh explains why the Attorney-General and head of the FBI were right to threaten resignation if Rep. William Jefferson [D-Crook/LA] got his tapes back, and looks at the lack of legal basis for lawmakers bloviating over "Congressional privilege". Andrew C. McCarthy frames the key issue here in Who’s “Trampling” the Constitution? - it's fundamental, and absolutely cross-partisan in a free society:
"Before they went anywhere near Jefferson’s office, the Justice Department served the congressman with a grand-jury subpoena, giving him the opportunity to turn over the evidence on his own. For you or me, a grand-jury subpoena is court process with which we must comply, no matter how inconvenient or embarrassing. Jefferson, however, decided he was above such laws.
Pause over that. The congressman did not march into federal court like an ordinary citizen must do if he believes a subpoena has been issued illegally or violates some valid privilege against producing evidence. He did not argue his point and wait for the judge to rule. He thumbed his nose in contempt. Congressional leadership has been deafeningly mum on that—something worth bearing in mind as they bellow about separation-of-powers."
No doubt Congressman Jefferson is puzzled by all the fuss. This is completely normal for New Orleans.... Back on point, more analysis of the speech-and-debate clause being cited follows. If you're an American, this is important.
Pejman quotes Yale law professor Akhil Reed Amar's "Mr. Jefferson, Meet Mr. Jefferson":
"...No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace" -- and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes. Following Blackstone, the U.S. Supreme Court has read the catchall expansively in leading cases decided in 1908 and 1972. Thus, sitting congressmen enjoy no special immunity from arrests in ordinary criminal cases.
So, what did the Arrest Clause actually privilege? Basically, it insulated a sitting congressman from certain civil lawsuits brought by private plaintiffs seeking a court order that would physically "arrest" the defendant, with the effect (and perhaps purpose) of removing the congressman from the floor and thus disenfranchising his constituents...."
Comprende? Back to Andrew C. McCarthy, because this point deserves a sledgehammer:
"The speech-and-debate clause (Art. I, Sec. 6) is all the shield an honest public servant should ever need. It ensures that if a member of Congress is tending to legislative business — not just by speeches on the floor but through engagement in any legitimately legislative activity — that member need never fear prosecution or other legal fallout based on anything said or done. No resulting remark or action, however egregious—and no matter how quickly a similar transgression would subject a private citizen to crushing liability — can be used to threaten jail time or damages against one of the people’s representatives.
For congressional leaders, however, that is not enough. When it comes to their perks, nothing ever is.
They demand, instead, to be immunized from even being investigated. With stunning hauteur, they insist that “their” office space—space that actually belongs to the American people, and in which legislators enjoy the high privilege of serving the American people—has somehow transmogrified into their very own private felony safe harbor: An exclusive, members-only club, where evidence of bribery, fraud, obstruction, and any other violations of law and betrayals of the public trust can be hidden beyond the prying eyes of the public’s enforcement officers.
Talk about trampling the Constitution! This is a blatant distortion of Article I, which, immediately before immunizing speech and debate, expressly recognizes that members of Congress may be prosecuted for crimes."
Bingo. And that's something no free people should tolerate. Pejman has an even pithier summation:
"Remember, the Republican majority in the House of Representatives staked their claim to power twelve years ago via the "Contract with America," the first article of which said that "all laws that apply to the rest of the country [should] also apply equally to the Congress."
It was a good idea back in 1994. It is a good idea now."
Yup. "Unhand Us, Peasants!" indeed. What a sorry spectacle all around.
Given the poor quality of what passes for "law" passed by this congress, why is anyone suprised when they appear ignorant of the Constitution and what it says.
I will say it again. 3rd party time if they’re ever was one. I think its well time for the Conservatives and the Libertarians, Constitutionalist ect... to jump off the Republican big umbrella party. Let the Republicans continue on the path they had been happily trailing in the 80’s mimicking the Whigs before them.
I think there is huge numbers of voters many who are not even registered that would come out for a 3rd party with a rallying leader. I think the vast majority of Americans see the choice of Bad and Horrible as useless. The massive center exists but it won’t vote for neither current party both of which everyone even memberships of fully believe are absolutely corrupt.
I am more than ready to support a third party. The "Eagle" party meme was floating around for a moment a few years back. Would a Joe Lieberman / Zell Miller ticket be out of the question?
I'd vote for a Lieberman/Miller ticket in a heartbeat. Besides Condi Rice, right now I can't think of a Republican I'd vote for, and the currents in the Democratic Party scare the heck out of me.
Congress under the Republican party since the beginningof 2001 has never excercised its authority to live up to its checks and balances responsiblities. Now that the leaders are coming under indictment for their dealings w/Abramhoff Scanlon, Myers, various Brownies and lastly the Hammer they want refuge from a storm of their own making. When they are defending a corrupt selfserving Democrat of the most petty nature(he didn't have enough sense to leave everything in New Orleans during Katrina and claim it against his insurance) you know how badly they feel the heat.
Arrest them all
Robert,
GOP leaders coming under indictment for dealings with Abramoff? Ahead of the news cycle, aren't we?
Robert M, Jefferson certainly did have the sense to leave stuff in New Orleans. What do you think was in those boxes et. al. that he commandeered US troops and vehicles to pick up just after the hurricane, when those forces were supposed to be undertaking life-saving rescues et. al.?
The whole episode, to me, is an excellent commentary on the importance of democracy and rule by 'non-experts.' Congresscritters are simply displaying a more universal truth when they act in this way, and demonstrate that if you hand things over to a professed expert class, this doesn't cancel their own penchant for self-interest.
Which is why it's better to have broader democratic decision-making and responsibility in the hands of people who may not have mastered the intricate details of whatever issue, but have a pretty good sense for when they're getting screwed. That, and a legislative/ expert class that is held to the same laws they pass for others.
Joe: "From your lips to God's ears..." Sorry spectacles are all the rage.
People like Jerry Pournelle who are standing behind Dennis Hastert are getting it from all quarters. Not saying that I agree with Pournelle on all points, but I am offering something in defense of that viewpoint.
IANAL, and unlike Jerry Pournelle I am willing to defer to lawyers who say there is nothing in the constitution defending the LA congressman from the search. So the constitution is off the table. But there is a lot more to our system of government than the Constitution -- think the Philipines, Marcos, Erap, etc. The Philipines have almost the exact same constitution as we, but their government has not been as smooth sailing. A lot more is required of a society than a paper document to emulate our mode of government.
There is a lot to society that is a matter of tradition, convention and if you try to resolve every single dispute through law and courts, life would grind to a halt. Even the resolution of law and resolution of the constitution, "living document" theory aside, takes place against the backdrop of unwritten customs, conventions, traditions, and expectations.
In the discussions of Cynthia McKinney's attitude towards Capitol Police, it was mentioned that the President checks his Secret Service protection at the door and relies on the Sargeant at Arms, and that Cabinet officers who come in there with their bodyguards get a polite but icy response. It may not be popular out there on talk radio and on blogs, but the Capitol is a kind of self-governing principality, a kind of Vatican with its own Swiss Guards. No, this is not in the constitution, but it is a convention, a custom, and a tradition.
As to Represenatative Jefferson complying with a subpoena, it turns out that the House leadership has been party to negotiations regarding compliance with said subpoena all this time, and Judge Gonzales' Justice Department got impatient and decided to go with their own procedures (filter teams, etc).
As to Dennis Hastert's truculence, we can reflect on the Clinton impeachment and what drove it to being a straight party-line affair. However you look back on that episode and the pros and cons of impeachment, Mr. Clinton was not known as Slick Willie for nothing, and the impeachment probably had as much to do with simmering resentment of his ability to keep agreements with leaders of Congress than the particulars of Paula Jones' complaint. Yes, the impeachment was about specific misconduct, but sometimes whether you get a ticket or a warning depends on what sort of mood you put the officer in.
With Speaker Hastert, he got blindsided by Dubai Port World, marginalized on immigration, and perhaps some other things. Just because he is a Republican and President Bush is a Republican doesn't mean they can't have a falling out over an accumulated list of slights, real and imagined. My wife and I are both Republicans but that doesn't mean I can start taking her for granted without consequences.
The President did the right thing with the 45-day cooling off period, and part of being a man is to risk being called less of man for backing down and doing what needs to be done to restore the peace and sooth hurt egos. I don't share Jerry Pournelle's view that grave harm was done to the Republic, but I think we all need to cool our jets and get through this.