Monday, May 29, 2006

If It Were Your Office . . .

According to the Washington Post here, Senate Majority Leader Bill Frist is "okay" with the search of Rep. William Jefferson's office. But would he be "okay" if it were his office?  Would he be "okay" if someone from the executive came into his office and took documents or materials because they believed a crime had been committed. Yes, the search warrant requires probable cause, but it does not allow the individual the right to go into court and request that the search warrant be quashed prior to the government obtaining the items in question. And if the officer acts in "good faith" even if later proved to be incorrect (Leon), the items obtained from the search may be allowed into court.

Would Sen. Frist be "okay" if the FBI decided to procure all evidence coming from the Abramoff case by entering legislative offices and not using the subpoena duces tecum?  And will he be "okay" if the searches start occurring immediately before elections, and maybe when a different Attorney General is in office? 

Everyone is innocent until the government proves them guilty beyond a reasonable doubt.  And making sure that the executive does not intimidate or interfere with the legislative branch is also important.  It doesn't mean that individuals who commit crimes are not prosecuted, it just means that with vast prosecutorial power it is important to protect the tripartite process.  President Bush's resolution to seal the items is a good solution to allow the defense the opportunity to present their case to court and force the prosecution to respond as to why the choice of a search was necessary here.

(esp)

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Comments

Professor - Just a couple of things that the press and yourself have negated to mention. Did not a federal magistrate review and approve of the search warrant? Why the criticism solely on the law enforcement for merely investigating a crime? Why not on the Magistrate Judge who reviews the search warrant? Any defense seems to be solely partisan politics without any lawful foundation to object.

Secondly, "probable cause" is established - thus why should a congressman get special protections that the citizens that he is supposed to be serving are not entitled?

Posted by: Deuce | May 30, 2006 4:37:55 PM

Why is it that Congress goes wild over the search of a congressional office with a search warrant but doesn't seem to care a rap about data mining ordinary citizens phone data without a search warrant. If the Executive is not answerable for activities involving ordinary citizens why should we be concerned with congressional super citizens when they are not worried about our civil liberties. The executive and legislative branches both consider themselves above the law. And the judicial branch. Look at New Hampshire, where the judiciary appears to have isolated itself against private citizen criminal complaints. It appears that with the connivance of the executive branch the New Hampshire Judiciary can grope women And commit crimes with impunity.

Posted by: Howard N Stark | Jun 1, 2006 5:29:01 AM

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