loser demoRATS: In a sometimes scolding tone, Judge Hogan wrote that the warrant had not violated Mr. Jefferson’s rights against unreasonable search and seizure, nor did it step on constitutional principles. “The facts and questions of law here are indeed unprecedented,” the judge wrote. “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 judge rejected arguments by Mr. Trout and a bipartisan advisory group representing the House leadership that the search had violated the centuries-old balance of powers among the branches of government, which is reinforced in the speech or debate clause. It prohibits a president, prosecutor or plaintiff from prosecuting or suing lawmakers over their legislative work and protects them from being forced to testify about that work. The warrant, the judge ruled, did not interfere with Mr. Jefferson’s legislative actions.
The defense had argued for a broad interpretation of the constitutional privilege granted Congress, saying Mr. Jefferson should have received prior notice of the search, to review and withhold legislative materials from investigators. “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,” the judge concluded.
What could not be avoided in a discussion of a search warrant sought by the executive branch, approved by the judicial branch and executed on the legislative branch was Judge Hogan’s role. He contended that he intervened as a neutral authority, as a check on the power by the Bush administration.
“If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch,” he wrote. “Rather, the principle of the separation of powers is threatened by the position that the legislative branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant.”
He noted that the founding fathers had rejected a proposal that would have allowed Congress “to be the exclusive judges of their own privileges.” And he rebuffed a House argument that executing search warrants on legislative offices would subordinate Congress to the other branches or expose it to abuses by those branches. “This claim does not merely trivialize the role of the court, but actually ignores it completely,” he wrote.
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