The Constitutional Crisis No One Seems To Understand

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After years of playing dead while the gang of outlaws running
the White House routinely invaded the privacy of mere citizens
without statutory authorization ("Bush's
Real Motive
," News and Features, February 10), Congress
was finally roused by executive aggression against one of its
own last week. That's nice, except the dolts in Congress let the
imperial presidency get so out of hand that we are now faced with
a truly nasty constitutional crisis. It's one that is far more
complex than anyone in government, academia, or the press seems
to realize.

When the FBI's search of Louisiana Democratic Representative
William Jefferson's Capitol Hill office ignited a firestorm led
by the formerly bootlicking House Republican leadership, Bush
and Co. appeared surprised. After all, they thought they had the
goods on Jefferson, who had already been caught on an FBI-sting
video accepting $100,000 in cash, suspected to be a bribe.
And there was no love lost for the Louisiana Democrat, as House
minority leader Nancy Pelosi herself made clear when she insisted
publicly that Jefferson relinquish his seat on the Ways and Means
Committee (Jefferson refused). The FBI had even gone to the trouble
of getting the personal okay of Attorney General Alberto Gonzales,
in addition to a court-ordered warrant, to pursue their little
fishing expedition.

What the White House didn't count on was that a red-hot Congress
would invoke an obscure constitutional provision called the "speech
or debate clause," found in Article 1, Section 6, that protects
the legislature from intrusion by other branches of government
under certain circumstances. Under its terms, it is likely that
the Department of Justice was required, at the very least, to
ask the House leadership for permission to execute the warrant
and to allow an observer appointed by the House to monitor the
intrusion on Jefferson's office. The provision is nothing less
than a bulwark of the separation-of-powers doctrine, derived from
ancient parliamentary restrictions on English kings. It accounts
for why the executive branch has never before in the Republic's
history dared to search a member of Congress's office.

A host of "scholars" have been uncritically quoted
in the press arguing that the speech or debate clause does not
apply here. Well, they're simply wrong — not least because they
insist, incorrectly, on drawing analogies between this case and
Watergate. In the Watergate case, the Supreme Court ruled that
executive privilege did not protect Nixon from having to turn
over White House tapes to a congressionally appointed special
prosecutor, who had requested them through subpoena. However,
there's a world of difference between proceeding by subpoena and
conducting an FBI raid, which gives agents access to all manner
of confidential legislative materials sitting in the Congress
member's office. Moreover, in the Nixon-tapes case, a very careful
process was set up by which the tapes were listened to. In the
Jefferson case, FBI agents were there in the office alone, rummaging
through the congressman's papers, the overwhelming bulk of which
surely related to his constitutionally protected legislative activities
rather than to any bribery scheme. Besides, the concept of "executive
privilege" is not in the Constitution. Rather, it's a court-made
construct of limited scope, so it offered flimsy grounds for Nixon's
case — unlike Congress's reliance on the speech or debate clause
that, although narrowly limited to the protection of legislative
activities, would almost certainly prohibit Bush's unrestricted
meddling with Jefferson's papers.

In the early 1970s, I was co-counsel for then-senator Mike Gravel
(D-Alaska) in his court challenge to the Nixon administration's
subpoena seeking Gravel's copy of the Pentagon Papers. Even Nixon
and his thuggish attorney general, John N. Mitchell (who ended
up serving a well-earned prison sentence for perjury, obstruction
of justice, and conspiracy), did not have the temerity to conduct
a search of Gravel's senatorial office in hopes of finding his
copy of the Pentagon Papers. A search, after all, is one giant
step more intrusive than a subpoena that simply demands that the
congressman produce the document. Nixon and Mitchell did not even
subpoena Gravel directly, fearful of transgressing the clause.
Instead, they subpoenaed one of the senator's aides, but Gravel
intervened to argue that the subpoena was an intrusion by the
executive branch into his official work. Even the subpoena caused
a firestorm, and the Senate joined the Supreme Court fight on
behalf of legislative privilege. The court was unanimous in ruling
that the clause protected all legislative activities, but Gravel
lost his effort to overturn the subpoena by a single vote because
of the manner in which he'd processed the papers. Had the FBI
raided Gravel's office, it would have likely shown up in the bill
of impeachment being drawn up at the time Nixon resigned the presidency.

Bush announced a 45-day cooling-off period during which the seized
documents will be held but not read by the solicitor general while
the Department of Justice tries to work out a plan with the House
leadership. Attorney General Gonzales and FBI director Robert
Mueller, who don't seem to understand the meaning and scope of
the clause (any more than do most legal commentators being quoted
in the press), have threatened to resign if the documents are
returned. But if they really grasped the scale of the constitutional
insult the administration has hurled at Congress, they might have
instead suggested that House counsel share custody of the Jefferson
papers with the Solicitor General. This would be in the spirit
of their constitutional obligation to Congress's right to protect
the people's legislative business from royalist snoops.

3, 2006

A. Silverglate [send
him mail
], co-author of The
Shadow University
, is an attorney with Boston's
Good & Cormier. This article, from the Boston
, is reprinted with permission.

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