Saturday, November 01, 2008

How About Some Strict Construction?

Today's Washington Post contains an article which really had me muttering for a while. It seems that congress critters under investigation for corruption are using the "speech and debate" clause as a way to exclude evidence gathered by wire taps and searches at their offices.

A constitutional clause designed to protect members of Congress from abusive or harassing lawsuits is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate scandal.

Under a constitutional provision known as the "speech or debate clause," lawmakers have wide protections that cover their work on Capitol Hill. That means legislation, floor speeches, and wiretaps that capture information related to votes and strategy are often out of bounds in developing a criminal case.

The original intent of the Constitution's framers was to protect legislators from the litigious harassment of disgruntled citizens angry that their senator spoke in favor of putting a tax on nails during debate on the issue. The clause was intended to foster the independent judgment of the legislators.

It's hard to imagine, however, that the country's founders intended such protection to extend to conversations with Jack Abramoff types over the size of a bribe it would take to vote against such a tax. Nor, I suspect, did the framers contemplate protecting such conversations and communications taking place when Congress was not in session, which happens quite frequently during the year.

One would have expected that the current Supreme Court would have used some of that vaunted "strict constructionism" in dealing with the issue, but one would, of course, be wrong. The Court refused to set aside a lower court ruling excluding evidence gathered by the Justice Department in the raid on the office of Rep. Jefferson (D-La), including the $90,000 in cash found in the office freezer. Now other cases of pretty clear corruption are in jeopardy because of the expansive reading of the "speech and debate" clause.

I guess it takes a lot of dry powder to make the Supreme Court sneeze.



Anonymous Anonymous said...

Well, I actually agree with it, Diane, at least in Jefferson's case.

His office, as you may call, was raided by the FBI. This creates an atmosphere of anxiety in the Legislature, since office computers might have politically sensitive or embarrassing things ranging from correspondence with a whistleblower to Temp files from Hustler, from personal information relating to contributors to strategy for dealing with the opposition. And here the Executive is allowed to come in and seize that. Not good.

In Jefferson's case, I said they should have directed the Capitol Police to do the search. Since the Capitol Police are not under the control of the Executive, that resolves the issue.

When it comes to speeches made on the floor of the Congress, that's pretty hard to argue it will be protected by speech and debate. However, a case could be made if there were some indication that the point of the prosecution is to silence speech.

12:59 PM  
Anonymous Anonymous said...

(the above is Charles of MercuryRising)

1:00 PM  

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