A HOUSE NO LONGER DIVIDED

Article I, Section 6:

Senators and Representatives...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

http://www.law.cornell.edu/constitution/constitution.articlei.html

The gauntlet has been dropped. The Congress has the responsibility to pick it up. Responsibility? Lets remember the Congress represents the people. If the Congress allows the separation of powers to erode, they are failing their constituents.

The illegal search of Rep. Jefferson's office by the DOJ and FBI clearly violates the constitution. The "speech or debate" clause has been interpreted by the judiciary as follows: "precludes any showing of how [a member of Congress], acted, voted, or decided." United States v. Brewster, 408 U.S. 501, 525 (1972). In essence, every file, note or document of any kind may contain precluded information and the "form" subpeona signed and issued by a federal judge did nothing to distinguish precluded documents. Realizing the constitutional conflict, DOJ formulated a search strategy:

"First, the physical search would be conducted by FBI agents who are not involved in the investigation, and who would swear in writing not to reveal anything politically sensitive and unrelated to the investigation that they might see in Rep. Jefferson's office. These non-case agents would then hand records over to a "Filter Team," whose only role before or after their appointment would be to double-check for anything that may run afoul of the Speech or Debate clause or any other privilege. They would log the date, recipient, sender, and subject matter of anything they found that raised a red flag, turn those logs over to Jefferson's lawyers, and submit the questionable material to the judge to determine whether it was in fact privileged and therefore excluded from evidence." from http://spectator.org/dsp_article.asp?art_id=9876

What DOJ and all the naysayers fail to recognize is that the "privelege" invoked by this clause is not protected by a "filter team". DOJ could have maintained some integrity had they allowed the House Attorney or another representative (including Jefferson) be present during the search - which in their wisdom they not only opted to not notify the House but BARRED Jefferson and the House Atty from being present. The act of reviewing any written material (and more aggregiously the copying of Jefferson's entire hard drive) clearly violates the constitution.

Witnesses before the Congressional Committee investigating the search further pointed out that the "priveleged documents" were limited to just that. Any other materials seized (ie, drugs, money) would be legal.

The DOJ & FBI simply overstepped their bounds.

Another witness responded to Atty General Gonzalez and others threatening to resign before giving up the documents: "Let them".

Dont let the DOJ interpretation of precedent sway your judgement. There are suggestions that a ruling in a search of a judge's chambers and office is adequate precedent. You will note in the Constitution, no such privelege or protection exists for the Judicial or Executive offices. The Judiciary has interpreted many similar protections to their office and the Executive, however.

The Congress must act swiftly and forcefully to uphold the Constitution. The suggestion by some witnesses and Congressman to enact legislation on proper procedures for future incidents is absurd. As with many issues, there is more than enough legislation and judicial precedent. Not to mention the 219 years of respect afforded to this institution.