Write-On Competition - Part III - Congratulations

I was not successful in my application, but congratulations to those who made it!

[lawschool] [law_review]

Speeches and Debates

Congressman William Jefferson's contention, that all materials in his office are immune from searches and seizures, has been struck down by Federal District Judge Thomas F. Hogan as an improper interpretation of the Speeches and Debates Clause (U.S. Constitution, Article I, Section 6). (Judge Hogan's opinion is here in PDF format.) The Conclusion follows:

The facts and questions of law presented here are indeed unprecedented. It is well-established, however, that a Member of Congress is generally bound to the operation of the criminal laws as are ordinary persons. The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” Brewster, 408 U.S. at 516. Members of Congress are not “exempt[] . . . from liability or process in criminal cases.” Gravel, 408 U.S. at 626.

The existing broad protections of the Speech or Debate Clause – absolute immunity from prosecution or suit for legislative acts and freedom from being “questioned” about those acts (including privilege from the testimonial act of producing documents in response to a subpoena) – satisfy the fundamental purpose of the Clause to protect the independence of the legislature. The Court declines to extend those protections further, holding that the Speech or Debate Clause does not shield Members of Congress from the execution of valid search warrants. Congressman Jefferson’s interpretation of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial precedent and will not be adopted here. See Williamson v. United States, 28 S. Ct. at 167 (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (quotation omitted).

For the foregoing reasons, the Court has found that the search executed on Congressman Jefferson’s congressional office was constitutional, as it did not trigger the Speech or Debate Clause privilege, did not offend the principle of the separation of powers, and was reasonable under the Fourth Amendment. Accordingly, the Court will deny the motion for return of property. An appropriate order will accompany this Memorandum Opinion.

This seems to bear out what I had written:

It seems to me that Jefferson's Complaint claims not so much that he is protected by the privilege from Arrest than that his office is immune to searches and seizures because searches and seizures should be interpreted as questioning him about his legislative operations.

...

My guess is that no judge will grant absolute immunity of the sort Jefferson seems to be looking for. I also don't think any judge will lay down an exact rule as to how a search may be conducted. If anything, the court would probably issue a guideline or a balancing test to help future judges decide whether or not appropriate precautions have been and will be taken before signing off on a warrant.

Judge Hogan's conclusion seems reasonable, and consistent with what I know of Constitutional Law. If appealed, I highly doubt his ruling will be overturned. At most, it may be remanded for further consideration, if a higher court does formulate a newer guideline.

[constitution]