The random political thoughts thread (Part Deux)

[Gemini Cricket]

I think this country needs better looking politicians. A lot of them are bloody goofy.

[Alex]

The Speech and Debate Clause (Section 1) is the only consitutional source of immunity and narrowly only protects congressman from arrest or harrassment while engaged "speech and debate" in a session of congress. This has been expanded a bit by the courts in the last 30 years. Other sources of immunity are all legislative, I believe.

But it appears that for this search (which was to seize documents that had been requested with no response) standard procedure was not followed. From the Department of Justice Criminal Resource Manual:

The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches. Gravel v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395 U.S. 486 (1969).

While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527. The Supreme Court has declared that "past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause," including speeches in committee as well as those on the Floor of the Chamber, the Senator or Representative's votes, and his or her explanations for them. A somewhat wider latitude has been allowed insofar as the admissibility of activities that took place occurred prior to a legislative act. United States v. Helstoski, 442 U.S. 477, 489 (1979). However, the parameters of what constitutes a "legislative act" are quite broad, and can severely impair the ability of prosecutors to prove bribery and gratuity cases where the recipient is an elected Member of the Legislative Branch.

When evidence embraced by this privilege is introduced--either in trial or in grand jury proceedings--the effect can be as troubling to the prosecution as introducing the fruits of an illegal search. See United States v. Durenburger, 1993 WL 738477 (D.Minn 1993); Helstoski, supra; compare Johnson.

In addition, both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.

The big issue as I see it is that in such a search the Executive Branch would, almost by definition, have to search through reams of explicitly privileged materials to find the documents they are justified in possessing. I'm not saying that the congressman should have immunity from disclosure but that the executive branch should work with the congressional leaders, sergeants-at-arms, and Capitol Police to procure the items in question without otherwise violating the privelage of the Legislative Branch from intrusion by the Executive Branch.

[JWBear]

Originally Posted by scaeagles

A congressman is under investigation by the FBI. He was on tape accepting 100K in bribes. He had 90K in his office in the fridge. There was a search warrant for the office signed by the judge.

The house leadership is upset about separation of powers.

What????????

A point of clarification.... The $90K was found in a freezer in his home, not in his office.

[Moonliner]

I'm sure that Hastert righteous indignation at this event is purely due to a love and respect for the constitution and is in no way motivated by the fact that he is also under investigation.

I'll bet if was to listen real hard I could hear the sound of the paper shredders on overdrive from here...

[Scrooge McSam]

Originally Posted by Moonliner

I'm sure that Hastert righteous indignation at this event is purely due to a love and respect for the constitution and is in no way motivated by the fact that he is also under investigation.

Why, Moon, I'm astonished at you for suggesting such a thing.

We must have drinks sometime

[Alex]

Depends on the papers I guess. They served William Jefferson with subpoenas for the documents they were after several times before deciding to go in and get it themselves. Apparently he still hadn't destroyed them even.

If the Speaker of the House is part of the investigation then I think that would be an obvious exception situation. Though in this case I'm pretty sure it is a different investigation.

Just to be clear, I am not at all suggesting this search was inappropriatein scope or motive but it is a tool that could be easily misused by the executive to exert leverage over the legislature and it should, I think, go through cooperative channels in almost every situation (as the DOJ rules themselves say).

[scaeagles]

Apparently Hastert is not under investigation.

DOJ says Hastert not under investigation

In fact, Hastert wrote a letter to ABC warning of libel, because ABC ran with the story after the DOJ said he was not under investigation.

By the way, I hold no love in my heart for Hastert. He is a spineless leader picked because he was as non-controversial (at the time at least) as they had.

[Gemini Cricket]

Skilling was found guilty on 19 counts of conspiracy, fraud, false statements and insider trading. He was found not guilty on nine counts of insider trading.

Lay was found guilty on all six counts of conspiracy and fraud. In a separate bench trial, Judge Sim Lake ruled Lay was guilty of four counts of fraud and false statements.

Both Lay and Skilling could face 20 to 30 years in prison, legal experts say.

Lay and Skilling are found guilty...

[Alex]

Based on the details I've read over the years I'm a bit surprised that the DOJ was so successful. But jury certainly got a better look at everything than I did so I'll assume they know better.

But it is a case where the most overtly criminal action (Andy Fastow's illegal side deals to enrich himself, which also triggered the cascade effect that brought Enron down) gets the least jail time because he rolled first.

[Gemini Cricket]

For some reason, I was prepared to hear that they were going to get off on some technicality or something.