May 22, 2006
Legislature v. Executive = Judicial Decision
With the recent FBI search of the legislative office of William J. Jefferson (D. La.) and now the Washington Post reporting here in an article titled "FBI Says Jefferson Was Filmed Taking Cash," several more (see prior post here) questions arise:
- If this had been via a grand jury subpoena there would be no disclosure of the details of the items secured or the testimony received. By selecting to proceed with a search, probable cause is necessary and therefore the filing of an affidavit for the search warrant. It is this affidavit that is being used by the newspapers to talk about the congressman allegedly being filmed receiving cash. Does the selection of a search warrant as opposed to a subpoena give the government an edge in being able to display their case to the media?
- If the government had proceeded via a grand jury then it would be subject to 6(e) secrecy. "Rule 6(e)(2) of the Federal Rules of Criminal Procedure sets forth the general secrecy requirements of federal grand jury proceedings. It provides that the grand jurors, grand jury personnel, government attorneys, and personnel assisting government attorneys may not disclose 'a matter occurring before the grand jury.'" Podgor & Israel, White Collar Crime in a Nutshell 2d 246 (1993). Yet, here in the press we see that what the "FBI Says" is being disclosed. Do we have an abuse of prosecutorial discretion when the government selects to proceed with a search as opposed to the grand jury process that would have been secret and would have precluded the FBI from making public statements, even when the statements may be through the filing of their documents?
- The fact that the government decided to search, thus precluding the legislative member the opportunity to go into court and contest the matter (he would have been able to file a motion to quash the subpoena), infringe on the separation of powers? Should the executive (FBI and DOJ) have the right to search the offices of a member of Congress? Separation of powers is an important principle to make certain that each branch of the government can function independently of another, and without being in fear of another branch.The "Speech and Debate" clause explicitly protects some activities of members of Congress. (For an excellent article on the contours of the Speech and Debate Clause see Robert J. Reinstein & Harvey J. Silverglate, Legislative Privilege and the Separation of Powers, 86 Harvard Law Review 1113 (1973)) Has the government crossed the line in searching the "office" of a member of Congress? Or is this scenario different because it involves possible personal activities that maybe outside the job function of a member of Congress? But if we allow searches like this, will the executive next be wiretapping the offices of members of congress? And who will be making the decision as to when this is proper or not?
- Many of these questions did not arise when the home of the congressman was searched, as the line between personal and job-related activities is clearer. But with the entry into his office - the line between separation of the executive and legislative becomes blurred. On the other hand, the possibility of items being placed in the legislative office to avoid review is bothersome. So it all comes down to whether a search is ever appropriate when it is a legislative office. Should the legislative member have the opportunity to appear in court and move to quash prior to the government entering the premises with a search warrant? If this is the case, then prosecutors would have to use subpoenas instead of searches. Maybe that is the best route to protect the line between the legislature and executive. Why was that not done here? Was there a legitimate fear here that warranted a search? Stay tuned....
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