<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:27794.wais]
RECKLESS JUSTICE: DID THE SATURDAY NIGHT RAID OF CONGRESS TRAMPLE THE
CONSTITUTION?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MAY 30, 2006
__________
Serial No. 109-122
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
C O N T E N T S
----------
MAY 30, 2006
OPENING STATEMENT
Page
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Committee
on the Judiciary............................................... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Member, Committee on the Judiciary..... 4
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Committee on the Judiciary.. 4
The Honorable Darrell Issa, a Representative in Congress from the
State of California, and Member, Committee on the Judiciary.... 5
The Honorable Chris Van Hollen, a Representative in Congress from
the State of Maryland, and Member, Committee on the Judiciary.. 6
WITNESSES
Mr. Charles Tiefer, Professor, University of Baltimore Law School
Oral Testimony................................................. 7
Prepared Statement............................................. 9
The Honorable Robert S. Walker, Chairman, Wexler & Walker, and
former Member of Congress from the State of Pennsylvania
Oral Testimony................................................. 23
Prepared Statement............................................. 24
Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of
Public Interest Law, The George Washington University Law
School
Oral Testimony................................................. 25
Prepared Statement............................................. 29
Mr. Bruce Fein, Principal, The Lichfield Group, Inc.
Oral Testimony................................................. 46
Prepared Statement............................................. 48
APPENDIX
Material Submitted for the Hearing Record
Response to Post-Hearing questions from the Honorable Robert S.
Walker, Chairman, Wexler & Walker, and former Member of
Congress from the State of Pennsylvania........................ 63
Response to Post-Hearing questions from Jonathan Turley,
Professor, George Washington University Law School............. 68
Response to Post-Hearing questions from Bruce Fein, Principal,
Lichfield Group................................................ 74
``Memorandum in Support of Motion for Return of Property''....... 82
``Motion for Return of Property and Emergency Motion for Interim
Relief''....................................................... 105
RECKLESS JUSTICE: DID THE SATURDAY NIGHT RAID OF CONGRESS TRAMPLE THE
CONSTITUTION?
----------
TUESDAY, MAY 30, 2006
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 9:30 a.m., in Room
2141, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order. A
quorum for the purpose of taking testimony is present.
On May 20 and 21, for the first time in 219 years, the
Department of Justice entered a Capitol Hill office and removed
documents and materials without the involvement of a single
legal representative of Congress. Exactly what was taken is
known only to the Department of Justice.
Certainly, any Member of Congress who has committed a crime
insured be prosecuted for his criminal acts, but the issues
involved in this unprecedented action by the executive branch
transcend any particular Member. A constitutional question is
raised when communications between Members of Congress and
their constituents, documents having nothing whatsoever to do
with any crime, are seized by the executive branch without
constitutional authority.
This seizure occurred without so much as lawyers or
representatives of Congress being allowed to simply observe the
search and how it was conducted. Neither was anyone
representing the institutional interests of Congress allowed to
make a case before a judge, raising these important separation
of powers issues.
Our Founding Fathers, Thomas Jefferson and James Madison,
made clear that a general legislative constitutional safeguard
designed to prevent encroachments by the executive branch upon
the legislative branch is embodied in article I, section 6,
clause 1 of the Constitution, which provides that Senators and
Representatives shall not be questioned for any speech or
debate in either House.
The purpose of the speech or debate clause was aptly
summarized by the Supreme Court in Eastland v. U.S.
Servicemen's Fund, in which it stated ``the central role of the
clause is to prevent intimidation of legislators by the
executive, and accountability before a possibly hostile
judiciary.''
The Supreme Court has also stated in United States v.
Johnson that in the American governmental structure, the speech
or debate clause serves the function of reinforcing the
separation of powers so deliberately established by the
Founders.
In Helstoski v. Meanor, the Court said the clause is
vitally important to our system of government.
In the case of United States v. Brewster, the Court
emphasized that the speech or debate clause does not confer
immunity from prosecution for criminal activities upon Members
of Congress, because such activities are not legitimate
legislative acts.
However, while bribery and other crimes clearly fall
outside the scope of the constitutional legislative safeguard,
the prior question is what procedures should be adopted to
determine which Member communications are protected by the
speech or debate clause and which are not. The Supreme Court
has made it clear in the Brewster case that it is beyond doubt
that the speech or debate clause protects against inquiry into
acts that occur in the regular course of the legislative
process.
In the case of Representative William J. Jefferson, the
search warrant that the Justice Department obtained from a
Federal judge allowed for his congressional office to largely
be combed over with materials, including computer hard drives,
placed in the sole possession is of the Department of Justice.
The materials taken very likely include communications
created in the course of legitimate legislative process that
have nothing to do whatsoever with the criminal inquiry into
Representative Jefferson's activities. The Justice Department
had the ability to seek enforcement of their Federal grand jury
subpoena in Federal court to obtain the same documents seized
from Congressman Jefferson's Capitol Hill office, but chose not
to do so. The Justice Department has historically used grand
jury subpoenas to obtain documents relative to a criminal
investigation of a Congressman or Senator.
On May 25, the President ordered the seized documents
sealed for a period of 45 days so that Congress and the
Department of Justice could work out a constitutionally sound
solution that will allow all materials relevant to any crime to
be obtained while protecting innocent legislative materials
legitimately protected by the speech or debate clause. In doing
so, the President has allowed for precisely the sort of
reasoned deliberation on important issues of separation of
powers that I expect this hearing to accord with today.
I look forward to hearing from all our witnesses, who will
address the propriety of the Justice Department's conduct in
light of the Constitution, the separation of powers and the co-
equal branch of Congress.
I now recognize the gentleman from Michigan, Mr. Conyers,
for his opening statement.
Mr. Conyers. Thank you, Mr. Chairman, and Members of the
Committee. This is a historic moment in the House of
Representatives. I have been on the Judiciary Committee for 4
decades now, and never has anything of this nature come to our
attention and require that we try to bring the three branches
of Government into more harmony.
Now, there is no doubt that Members of Congress are not
above the law. The Department of Integrity Unit at the
Department of Justice is a progressive professional unit. They
have convicted one Member of Congress this year already, and
have several pending investigations. They have the full power
of not only the Federal Bureau of Investigation, but the grand
jury behind them, and they can be quite persuasive and
resourceful when they are interested in obtaining evidence or
witnesses in corruption investigations.
But the procedures employed on the Saturday night in
question were sloppy at best, but reckless at worst. What we
have brought down on our heads is 219 years on which, in which,
in this history of the United States, have been able to avoid
the spectacle of the Federal Bureau of Investigation swooping
down into the Capitol in direct confrontation with another
duly-empowered police force.
Ten days after the fact, we have yet to be told why the
pending subpoena against a sitting Member could not have been
enforced consistent with the law. We have never been told why
this search had to be done in the middle of the night at a time
when the constitutional Representatives of this body were
unreachable. We have never learned why the Member in Committee
was not permitted to have his attorneys present while his
offices were searched for some 18 hours.
The so-called safeguards utilized by the Department,
creating their own team to review claims of relevance and the
speech request debate clause protections, provide us little
constitutional comfort.
Like the rest of the search procedures, they were developed
unilaterally by the Department of Justice with little thought
given to the constitutional prerogatives at stake. I think this
is an important and timely hearing, and the witnesses called
here are very important. I am looking forward to hearing from
them.
But I think we should keep in mind the threats of the
Attorney General of the United States as has been reported, to
resign over this matter. Well, I think that should not go
unrecognized, because of the torture memorandum put out and
developed while Mr. Gonzales was the counsel to the President,
and later ratified as he was the Attorney General, there was a
memorandum that stated that the President could order officials
to commit crimes and that the executive branch could violate
Federal laws when the President viewed it to be in the national
interest.
We have the question of warrantless, domestic wiretaps,
which did not excite him one bit, and which the President
admitted that he ordered surveillance under the national--the
NSA domestic surveillance program, despite the views of many
experts that the operations violate Federal law and constitutes
a Federal crime when they are not done under the FISA
restrictions.
The Data Mining Corporation recently revealed 10 millions
of names and phone numbers in a massive data bank that did not
incline him to threaten to resign.
I think, Mr. Attorney General, you are barking up the wrong
tree, and this is an issue that hopefully Members of the
Republican and Democratic parties in the Congress can bring to
an end. I commend the Chairman of this Committee for calling
these hearings today.
Chairman Sensenbrenner. Thank you, Mr. Conyers.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. Thank you, witnesses,
for being here today. It is an important issue that has never
been dealt with before because of the observation of this
delicate balance of power.
I have to confess to you, in my year and a half of becoming
a seasoned veteran in Congress, I have been so much more
concerned about the judiciary overreaching in power, and I
really had not looked at that time executive function. But
since we dealt with the PATRIOT Act and the request to make the
PATRIOT Act permanent and the struggle over that and then the
revelations about the NSA and over phone logs and things, and
then this following on those heels, I have become more
concerned. There has been a lot of talk about the speech and
debate clause in section 6 of the Constitution.
One of the things that has also intrigued me is section 5
of the Constitution that says each House may determine the
rules for its proceedings, punish the Members for disorderly
behavior, and it was my understanding that there may have been
some talk early on in this Nation's history that perhaps,
unlike what we believe, should be appropriate, there were those
who thought that Congress should punish even criminal offenses
because it says Members of each House may punish their own
Members, and that over time it has become the practice that,
certainly, they are not above the law here in Congress, and
that they can and will be prosecuted, the history being that
the House Ethics counsel, when they discover any evidence of
wrongdoing, would turn those documents over to the Department
of Justice for prosecution. Because if somebody is corrupt, we
want them out of Congress.
I am curious if you might have something to add to that. I
know you each have prepared statements, and those will be part
of the record. But I am curious, given your collective wisdom
and knowledge about this body and about the executive and the
cooperation of powers.
But we appreciate your being here today. I look forward to
your comments. You know, some people have said you guys are
just defending Jefferson, and I agree, if they are talking
about Thomas Jefferson. But that is the way I see it. I am not
defending any other Jefferson other than Thomas Jefferson, and
the current concerns he had about the Congress and its powers
being usurped and intimidation from the other branches coming
to bear.
Thank you very much, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, you have
to begin this discussion with the premise that no one is above
the law. In that light, no one has said, to my knowledge,
anything about the fact that Jefferson, Representative
Jefferson's home was searched. No one said anything about that.
There is a suggestion that there is some kind of immunity
for Congressmen from arrest. You know, there is a temporary
immunity from arrest, if you are on your way to voting, the
local sheriff can't hold you until the vote is over, but you
are ultimately responsible to answer for whatever criminal
charges there are.
So no one is above the law, but there is a concern with
this because this kind of search hasn't happened in the history
of the United States. In over 200 years, it hasn't happened. It
didn't happen in Representative Cunningham's case. It didn't
happen in the Abramoff investigations. It didn't happen when
Representative Traficant was accused of taking kickbacks right
from his office. It wasn't used in the bank scandal, or even
ABSCAM.
What is so special about this case that this procedure had
to be used? I am also concerned about the breadth of the
subpoena. I think the analysis would be different if the
subpoena had been based on the fact that a reliable informant
had said there is evidence that can be found in the lower left
hand drawer, say, the money was there. They went in and
executed the search warrant, came out with the money and left.
I think the analysis would be a little different than the FBI
staying there for 18 hours, rummaging through everything,
including documents, which you have to read all documents to
know what you have, which means all of the information, all of
the sources. If you are going to have an impeachment inquiry,
all that information has to be made sensitive information from
constituents, all is to be read before you can get to anything
that you know might be used.
We have a precedence, a couple of decades ago, that dealt
with FBI searching newsrooms. I think we are going to hear
something from the witnesses about what we did in that case
because of the potential of abuse. Now, at least in this case,
at least we had judicial oversight, unlike the NSA wiretaps, up
like picking up the telephone numbers, unlike designating
somebody an enemy combatant--at least you had judicial
oversight. We will hear testimony from the witnesses as to
whether or not that makes much difference.
But I appreciate, Mr. Chairman, you calling the hearing.
This is a very important issue. I look forward to our
witnesses' testimony today.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Thank you, Mr. Chairman, I want to thank all of
the witnesses for being here during a recess. Professor Turley,
I am confident that we are not going to get locked in today. We
have assurances there will be no air hammers used any time
anywhere. This is, in all seriousness, an extremely important
hearing, not because of what we are going to learn, although I
know we are going to learn that is going to be significant.
It is extremely important because the American people do
not begin to understand why there is a concern. Their
assumption, quite rightfully, is no one is above the law.
Hopefully today, undoubtedly today, having looked through your
testimony, people will begin to understand that it has always
been a big deal when one branch of Government seeks to use a
subpoena or any other form of legal document or, for that
matter, brute force, to enter and to cast some question of the
sovereignty of the other branch.
This was true, as I know we are going to hear in Abraham
Lincoln's time, it certainly was true when this Committee and
the Senate Committee sought to receive records from President
Richard Nixon, went to the Supreme Court. It did not result in
the Capitol Police showing up in the Oval Office and wanting to
pull tapes out of drawers.
I hope today that the American people will be the greatest
beneficiary of your statements. I very much appreciate your
being here for just that purpose. I yield back.
Chairman Sensenbrenner. The gentleman from Maryland, Mr.
Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman, thank you for
holding this hearing. I thank all the witnesses for being here.
I will be very brief. I think this is an important hearing. I
think, as others have said, that there are many other areas
where this executive branch has exerted their authority, and I
think overstepped their grounds, and I think it would have
warranted a hearing as well, in fact, probably warranted one as
more or at least as much as this hearing.
We have heard the cases, of course, of the domestic
wiretapping exercises by the Administration, and what is going
on there. We have got the continuing practice of signing into
law statutes with caveats, with signing statements, that
essentially reinterpret those statutes to the benefit of the
executive branch, just imposing their view on and their stamp
on a law that was passed by Congress. I think all those areas
warrant hearings. It's good to see, Mr. Turley, Professor
Turley and Mr. Fein here.
In fact earlier, Mr. Conyers had a hearing that we had in
the basement of this building, on the wiretapping issue,
because we didn't have a full Committee hearing in the
Judiciary Committee dedicated specifically to the issue of
domestic wiretap, and we haven't had one devoted to that issue
since it was broken by The New York Times last December.
I think, Mr. Chairman, that that also was an example of
executive branch action and overstepping. I not sure to the
extent there was overstepping in this particular issue. I am
very interested in hearing the testimony.
As Mr. Scott said, a warrant was issued flew the judicial
branch, so I am sort of open-minded with respect to this
particular constitutional question. I think there have been
other incidents, as I alluded to, where the overstep being of
the executive branch was even more clear. I hope, as we go down
the road, we will look into those issues as well.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. Thank you, Mr. Van Hollen.
Without objection, all Members will have 5 legislative days
in which to submit additional materials for the hearing record.
I would now like to introduce our witnesses for today's
hearing. The first witness is Professor Charles Tiefer of the
University of Baltimore Law School. Before joining the faculty
there, Professor Tiefer was Assistant Legal Counsel to the
United States Senate from 1979 to 1984. He then served as the
Solicitor and Deputy General Counsel for the U.S. House of
Representatives from 1984 to 1995.
Professor Tiefer has written extensively on separation of
powers issues, and he is the author of the only treatise on
congressional practice and procedure. He is a graduate of
Columbia College and the Harvard Law School.
Our second witness is the Honorable Robert S. Walker, who
represented the Sixteenth District of Pennsylvania for 20
years. During his tenure in the House, former Congressman
Walker served as Chairman of the Science Committee as well as
chief deputy, Republican whip. He currently serves as Chairman
of Wexler & Walker Public Policy Associates, a Washington-based
government affairs firm.
The third witness is Professor Jonathan Turley of the
George Washington University Law School. Professor Turley is a
nationally recognized legal commentator and constitutional
scholar. He is a graduate of the University of Chicago and
Northwestern University School of law.
Our fourth and final witness is Mr. Bruce Fein, who is a
principal at the Lichfield Group. Mr. Fein served as Assistant
Director at the Office of Legal Policy at the Department of
Justice, and he is the author of several volumes on the U.S.
Supreme Court and the U.S. Constitution. He is a graduate of
Harvard Law School.
Chairman Sensenbrenner. I welcome all of the witnesses and
look forward to hearing your testimony. It is the practice of
this Committee to swear in the witnesses. So would you all
please rise and raise your right hand.
[Witnesses sworn.]
Chairman Sensenbrenner. Let the record show that each of
the witnesses answered in the affirmative. Usually we have a 5-
minute rule here. What I will do is be very liberal in
exercising the 5-minute rule, but the lights will be on. When 5
minutes is up, there will be a red light in front of you. So if
you would kind of wrap it up at your own pace, and then we can
get to questions.
Professor Tiefer.
STATEMENT OF CHARLES TIEFER, PROFESSOR,
UNIVERSITY OF BALTIMORE LAW SCHOOL
Mr. Tiefer. Thank you, Mr. Chairman, Mr. Ranking Member and
Committee Members. I was Solicitor and Deputy General Counsel
of the House from 1984 to 1995. That is the office that
represents the bipartisan leadership group of the House of
Representatives in court.
The Framers' purpose in the speech or debate clause of the
Constitution was ``to prevent intimidation by the executive''
of the Congress. That's the Supreme Court's term,
``intimidation.'' The clause applies to all the records in the
Congress of legislative activities, not just floor speeches and
bills, but most of the work in Committees and legislative
caucuses.
Its privilege is not that it puts Members above the law,
Members are frequently investigated, frequently charged,
frequently tried, frequently convicted. But it is an absolute
privilege against law enforcers getting or seeing or using the
legislative records that I just talked about.
During my 11 years in service for the House, and 4 years in
a similar Senate office before then, many investigations
occurred successfully of Members of Congress. I have cited some
of them in my testimony. They started with ABSCAM, which
occurred soon after I started work. We had Congressman Flake,
Congressman Biaggi, Congressman Rostenkowski, Congressman
Swindall, Congressman McDade. Several of these were acquitted,
several of these were convicted. The process succeeded. It
worked. Not during that time, not before then, not since then,
in 2 centuries has the Justice Department ever resorted to a
raid on Congress to get its evidence.
Now, this raid had all the elements of unconstitutional
executive intimidation. It breached what I have just described,
a previously sacrosanct constitutional tradition without, not
just without a showing of a unique necessity, but not even a
claim of unique necessity. If you read carefully, the materials
that had been reached by the executive branch, it does not
claim that there was some exigent circumstance necessitating a
new method. There is not a claim that even one piece of paper
would have been lost by the traditional methods.
It was planned wrongly. There were no executive guidelines
worked out with the House's protocols, no prior adversary
judicial proceedings, no prior notice to the House leadership,
nor any kind of consent or consultation, which meant that there
was no dealing with the very serious objections that would have
been made, that I would have made during my time, my
predecessors, my successors, that anyone, knowing the
constitutional, institutional interest of the House, would have
made. Now we look at those methods.
What were those methods? I think that the opening
statements of the Chair and the Ranking Member and the other
Members have ably brought out what was involved in those
methods, sweeping, indiscriminate, wholesale search by the FBI
of the entire office of this Member for 18 hours during the
night, and the downloading of the whole hard drive of his
computer, besides carting away reams of documents.
When they take the whole computer of a Member of Congress,
that means you are catching countless innocent constituents in
there in your dragnet. Since every congressional office
contains extensive privileged legislative materials, because
that is what the Members are here to do, legislative work. That
means that they are inevitably Wall Street, a wholesale
constitutional violation, a wholesale intrusion by executive
agents, in an intimidating way of legislative materials.
Furthermore, there was the exclusion of the House counsel,
even as a mere observer, and neither the Representative nor any
counsel were enabled to make privileged objections.
Instead, the Justice Department appointed itself to look
into everything, and to decide for itself what was privileged.
I have to tell you that with 15 years experience doing this
work, I couldn't figure out what is legislative or not without
the Member or staff putting it in context for me. I don't see
how they could during that night, and I don't think they did. I
think that each FBI agent could have trampled 1,000 privileged
pages and most likely did.
Thank you, Mr. Chairman, and Members.
[The prepared statement of Mr. Tiefer follows:]
Prepared Statement of Professor Charles Tiefer
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Chairman Sensenbrenner. Mr. Walker.
STATEMENT OF THE HONORABLE ROBERT S. WALKER, CHAIRMAN, WEXLER &
WALKER, AND FORMER MEMBER OF CONGRESS FROM THE STATE OF
PENNSYLVANIA
Mr. Walker. Mr. Chairman, Mr. Ranking Member and
distinguished Members of the Committee, when the Republicans
assumed the majority in 1995, one of our key missions was to
have Members treated under law like other citizens. Some would
have you believe that this particular case is all about such
distinctions, but what we are discussing today is not about
special rights for individual Congressmen, but the inherent
rights the Constitution provides for Congress under the
separation of powers doctrine.
No citizen, including a Member of Congress, is above the
law, but no agency is above the Constitution. America's great
experiment as a constitutional republic rests upon those
understandings. Somewhere in the Rayburn raid, the value of
these fundamental understandings got lost.
The Justice Department and the Federal Bureau of
investigation have a duty under law to prosecute those
citizens, including Members of Congress, who break the law.
What they cannot do is use extra constitutional means to carry
out their duty. Abandonment of fundamental law in the pursuit
of upholding the law is a recipe for constitutional crisis.
There are ways of obtaining needed information for criminal
prosecutions that have served us for 219 years, including the
use of subpoenas. The idea that the Justice Department was
without recourse in the Jefferson matter is completely without
merit.
The American people should be deeply concerned that a
decision to abandon tradition and conduct a raid on Congress
was made consciously and evidently at the high levels inside of
the Justice Department and the FBI. Press reports indicate that
this was no casual decision but a conscious decision to act in
an unprecedented way. The fact that this decision making
process went on with no attempt to gauge the reaction of
congressional leaders is wrong.
Now, there are lots of places to look to affix blame for
this breakdown of precedent and tradition. The issue before you
goes well beyond the facts of a particular alleged criminal
case, but the Member involved certainly helped precipitate the
situation with his noncooperation with authorities. The
immediate issue may have been the Member's noncooperation, but
the raid was on a co-equal branch of Government and threatened
its unique status in our constitutional system.
It might also be noted that Congress' inability to maintain
a working ethics process also contributed to an atmosphere
conducive to the Justice Department's action. In addition, the
warrant demanding Capitol Police cooperation with a raid on the
institution that they are duty bound to protect denotes a
casualness on the part of the judge about the unprecedented
step and questionable procedures he was approving.
Congressional leadership must seek an explanation for the
seemingly oblivious nature of the warrant process. While
recognizing that the roles regarding criminal activities are
different between the Congress and the executive branch,
imagine a situation where the situation was reversed. One can
only imagine that the concern would be if the Capitol Police
were sent on a raid of an executive agency in pursuit of
Congress' oversight function.
My recommendations to Congress for appropriate reaction to
the Justice Department action are as follows. One, avoid tying
the Jefferson criminal investigation to the institutional
prerogatives of the Congress. The legal focus of Congress
should be on definition of the separation of powers issue to
assure protection of its constitutional role. In no case should
Congress appear to be interfering with criminal prosecutions of
its Members conducted inside the bounds of constitutional
authority.
Two, it is possible to create a set of procedures and
protocols to cover search warrants the Department of Justice
might want to execute on a congressional office, but such
procedures and protocols can and should be worked out
consistent with the speech or debate clause.
Three, demand a full accounting for the decision making
process that led to the Rayburn raid. The Judiciary Committee
should be prepared to subpoena documents tied to this incident.
Four, institute processes for appointed congressional
officials and employees to follow in the event of incidence of
a similar nature. If the Rayburn raid was a precedent for
coming attractions and intimidating tactics, the way Congress
responds initially must be improved.
Five, seek an explanation for what seems to be a lack of
judicial respect for the traditions and precedence that have
insulated legislative deliberations from the threat of
overzealous exercise of executive power. As the Justice
Department rationale has played itself out over a period of
several days, it is clear that they believe that the ends
justified the means in pursuing their case against Congressman
Jefferson.
But the means deployed violated precedent, tradition and
possibly constitutional parameters. Nothing in the Forefathers'
view of representation Government was more important than
protecting Representatives from the unfettered use of executive
authority. So they used the means of Governments to restrict
that authority.
By substituting ends to means, the Justice Department has
sought to redefine a relationship 219 years in the making. They
did so purposefully and with malice aforethought, and they have
sought to use the sordid details of the Jefferson case as an
excuse for the unprecedented incursion into the fundamental
legislative rights.
It is a constitutional tragedy that this incident happened,
a tragedy that will only be compounded if allowing ends to
justify the means is permitted to stand unchallenged by a
Congress unwilling to stand firmly for its most basic
obligations to governance and posterity.
Chairman Sensenbrenner. Thank you, Mr. Walker.
[The prepared statement of Mr. Walker follows:]
Prepared Statement of the Honorable Robert S. Walker
Mr. Chairman,
No citizen, including a Member of Congress, is above the law. But
no agency is above the Constitution. America's great experiment as a
constitutional republic rests upon those understandings. Somewhere in
the Rayburn raid, the value of these fundamental understandings got
lost.
The Justice Department and the Federal Bureau of Investigation have
a duty under the law to prosecute those citizens, including Members of
Congress, who break the law. What they cannot do is use extra-
constitutional means to carry out their duty. Abandonment of
fundamental law in pursuit of upholding the law is a recipe for
constitutional crisis.
The American People should be deeply concerned that a decision to
conduct a raid on Congress was made consciously and evidently at high
levels inside the Justice Department and the FBI. Press reports
indicate that this was no casual decision, but a conscious decision to
act in an unprecedented way. The fact that this decision-making process
went on with no attempt to gauge the reaction of key congressional
leaders is wrong.
The issue before you goes well beyond the facts of a particular
alleged criminal case. The Member involved certainly helped precipitate
the situation with his non-cooperation with authorities, but that does
not obviate the circumstances that led to an attack on the
institutional prerogatives of the Congress. The immediate issue may
have been a Member's non-cooperation, but the raid was on a co-equal
branch of government and threatened its unique status in our
constitutional system.
The warrant demanding Capitol Police cooperation with a raid on the
institution that they are duty bound to protect denotes a casualness on
the part of the judge about the unprecedented step and questionable
procedures he was approving. Congressional leadership must seek an
explanation for the seeming oblivious nature of the warrant process.
While recognizing the difference in roles regarding criminal
activities, imagine a case where the situation was reversed.
My recommendations to Congress for appropriate reaction to the
Justice Department's action:
1. Avoid tying the Jefferson criminal investigation to the
institutional prerogative of Congress. The legal focus of
Congress should be on definition of the separation of powers
issue to assure protection of its constitutional role. In no
case should Congress appear to be interfering with criminal
prosecutions of its Members conducted inside the bounds of
constitutional authority.
2. Demand the return of any files taken during the Rayburn
raid (as the leadership has already done) and be prepared to
pursue this demand all the way through the Supreme Court.
Materials seized in the Rayburn raid clearly included
constitutionally protected legislative documents and files.
3. Demand a full accounting for the decision-making process
that led to the Rayburn raid. The Judiciary Committee should be
prepared to subpoena documents tied to this incident.
4. Institute processes for appointed congressional officials
and employees to follow in the event of future incidents of a
similar nature. If the Rayburn raid was a precedent for coming
attractions and intimidating tactics, the way Congress responds
initially must be improved.
5. Seek an explanation for what seems to be a lack of judicial
respect for the traditions and precedents that have insulated
legislative deliberations from the threat of overzealous
exercise of executive power.
Chairman Sensenbrenner. Professor Turley.
STATEMENT OF JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO
PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
Mr. Turley. Thank you, Mr. Chairman, Representative
Conyers, Members of the Committee. It is a great honor to
appear today. I have been assured by the House Judiciary
Committee that unlike the House Intelligence Committee, I will
be allowed to leave at the end of my testimony. But just in
case, I brought snacks if things go badly.
On a more serious note, we are here for a serious purpose.
There have been very few times that this House has faced a
moment of self-definition, where your identity and your
dependence are at issue. The raid on this office of
Representative Jefferson represents a profound and almost
gratuitous insult to a co-equal branch of Government.
In the history of this country, no President has ever
ordered or allowed a search of the office of a sitting Member
of this House. Now, there is a reason for that, that over 200
years this hasn't occurred. It is not because there has been a
lack of interest of criminal investigators. There have been
many investigations and many prosecutions. But there has been a
tradition of mutual respect and mutual restraint between the
branches.
What occurred on that Saturday shattered that tradition.
Now, many of our most important constitutional values and
traditions are not spelled out jot-for-jot in the text of the
Constitution. They are part of a long-standing term of
engagement between the branches. As I have laid out in my
written testimony, there is a long history, and there is a long
constitutional record to support the privileges of this House.
This is a question of means. It is a question of scope.
This search was an abuse because it was unnecessary, and it was
excessive, and it did great violence to the values of our
constitutional system.
Now, I was asked once, what was the most important
authority I could cite to this Committee by a reporter last
week, and my response was that I would have every Member read
Robert Frost, Mending Wall, because like that poem, the
Constitution believes that good fences make good neighbors.
That's the whole principle of the separation of powers. Good
fences make good neighbors.
We have a tripartite system that creates walls, and there
is no tension in that system because no branch has the
authority to govern alone. So each branch minds the wall, minds
its authority, minds its domain. To put it bluntly, the
President did not prove to be a good constitutional neighbor.
Now, as this Committee knows, there have been a series of
separation of powers and controversies that have occurred over
the last 3 years. I mention some of them in my statement. I
will not go into those. It was purely for the cathartic value
of knowing that we are in a crisis and one that this Committee,
I commend, for holding a hearing to look at this incident in
that context, because it is a disturbing mosaic.
The walls of the Constitution are found in the first
articles, the first three articles, of that document, as well
as other parts. But the first three articles contain those
structural limitations, including section 6 of article I. It
was put there to protect the independence of this body from
intrusions by both the executive and the judicial branches.
The mere fact that this search occurred with the authority
of a Federal judge does not mitigate the problem. The Framers
anticipated that it would occur that two branches would turn on
a third branch. In all of the references to the clause in the
Supreme Court, it is often the executive and judicial branch
that are discussed together in terms of the dangers that this
clause is meant to avoid.
In our system of Government, it matters how you do
something, not simply whether you do it. No one is suggesting
that Congressman Jefferson is above the law or that any Member
of this House is above the law. That would be facially absurd.
No one is suggesting that a Member of Congress cannot be
investigated. No one is suggesting that a Member of Congress
may squirrel away incriminating evidence in their office. This
is a question about means, and the means used here gave great
constitutional offense.
In my testimony, I go through the various reasons why the
search was so offensive. One of them is the availability of
other means. What is most baffling about this search is that
the affidavit that accompanied the search, that secured the
warrant, stated, under oath, that the Government has exhausted
all other reasonable methods to obtain these records.
In my view, that's facially untrue, because there are
methods that could have obtained these--this material, without
doing such a great constitutional insult to this body. It has
been done for over 200 years. They could have sought a court
order to compel Congressman Jefferson to comply. If that order
was ignored, they could have sought an order for his
incarceration.
Second, they could have sought in the court procedures to
allow for the turning over of this material, that is part of
the traditional method of the subpoena approach.
Third, they could have sought to seal the material or the
office by simply going to the House with a legitimate law
enforcement interest so that no material would have been in
danger of being lost or destroyed. Finally, they could have
sought direct action against a Member here if he refused to
comply, which I quite seriously doubt.
The scope of the search is equally troubling. There is no
question that this search did acquire a large amount of
legislative material covered by the clause. The Supreme Court
has said that what constitutes legislative material is broadly
defined to achieve the purse of the clause. The hard drive of
the computer is of particular concern.
By taking the hard drive of a Member, it's akin in the
Framers' day of taking every single piece of paper out and a
Member's office. If they had went in and removed every single
piece of paper, people would not be debating how serious that
is, but today that is exactly what happens when you take a hard
drive.
There was a lack of exigency. This target of the search
knew 8 months ago that they wanted to get this material. During
that period no reasonable effort was made to use alternative
methods.
I have suggested in my testimony that this court, this
Committee, consider enacting a law that is analogous to the
Privacy Protection Act that protects the media from the use of
search warrants against their office. That was a wonderful
decision, a wonderful law created by this Congress to protect
the first amendment rights of journalists. You should have less
protection under statutory law.
Let me first conclude that when Frost wrote the Mending
Wall, he noted ``Something there is that doesn't love a wall.''
We know in separation of powers, that is very true because all
branches have chafed at the walls that confined them.
But good fences make good neighbors, and you have mended
that wall, and you have maintained it. We have to remember that
it is your duty. This is the people's House, not yours, not
Representative Jefferson's. We expect you to return this
institution in the same condition you found it, as an
independent and vigorous representative body. Anything else
would be a betrayal, not just of yourselves, but of your
institution.
Thank you.
Chairman Sensenbrenner. Thank you, Professor Turley.
[The prepared statement of Mr. Turley follows:]
Prepared Statement of Jonathan Turley
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Chairman Sensenbrenner. Mr. Fine.
STATEMENT OF BRUCE FEIN, PRINCIPAL,
THE LICHFIELD GROUP, INC.
Mr. Fein. Mr. Chairman and Members of the Committee, checks
and balances are every bit as indispensable to our civil
liberties as the Bill of Rights. Yet the Bush administration
has been bent on a scheme for years of reducing Congress to
akin to an extra in a Cecil B. DeMille political extravaganza,
signing statements that are the equivalent of line item vetoes,
the assertion of executive privilege to deny Congress any
authority to oversee executive branch operations, a claim of
inherent presidential authority to flout any statute that he
thinks impedes his ability to gather foreign intelligence,
whether opening mail, conducting electronic surveillance,
breaking and entering, or committing torture.
This latest use of a search warrant by the executive branch
to rummage through the files of a Member's office is simply an
additional instrument of the Bush administration to cow
Congress. It is exceptionally important that the Congress
respond clearly and authoritatively with a statute that rejects
the authority of the executive branch, whether or not a search
warrant is authorized by a judge, to look through the files of
a Member's office and glance at legislative protected materials
under the speech or debate clause. That kind of authority can
be abused to intimidate, to cow Congress into submission to
executive desires.
Principles unchecked lie around like loaded weapons, and
they will be used whenever an urgent need the claimed by the
incumbent. That is why it is so important to reject the
principle involved in the search warrant, not focus on the
details of the Jefferson warrant and search.
The speech or debate clause is violated whenever the
executive branch would obtain a search warrant that would
require reading the files of a Member's office in order to
determine whether any of the documents fit the demand of the
search warrant. That is the only way in which a search warrant
for documents can be implemented. You have to read every file
to know whether or not it identifies something in the search
warrant. That inescapably means when you are searching a
legislative office, you must come across speech or debate
protected materials.
As soon as the FBI looks at those documents and reads it,
comes across, perhaps, sensitive political strategy,
information in the hands of a Member, questions that might be
asked during oversight hearings, the violation occurs. The
memory of the official cannot be erased. It is then part of the
executive branch apparatus pool of knowledge that can be
utilized to implement the power, to cripple the congressional
oversight and legislative function.
In my judgment, it makes no sense to be satisfied with
protocols with the Department of Justice asking us that
warrants be administered in particular ways. Because the breach
occurs whenever there's an obligation to open your files to the
executive branch, under any circumstances.
That is exactly why this Congress in 1980, after the
Supreme Court's decision in Zurcher v. The Stanford Daily, held
that the FBI, under the fourth amendment, could raid press
offices and enacted the statute when it comes to the work
product of the press, it doesn't matter how important to
proving a crime, it's off limits. A subpoena can be utilized.
If it is frustrated, it is more important that criminal justice
be frustrated than that we have a timid and effete free press.
That is the same judgment the Founding Fathers made with
regard to the speech or debate clause. It is different than any
other clause protecting executive branch or judicial
deliberations. It is expressed in the text. The Founding
Fathers worried that Congress would be too weak, not too
muscular. It worried about an executive branch and judicial
branch that would deter Congress from asserting the prerogative
that comes from the people directly.
That is why, I think, it would be misplaced to try to focus
on any analogies with regard to searching executive branch or
judicial branch offices, because they lack that explicit
constitutional Constitution enshrined in article I, section 6.
Of course, the Founding Fathers were not so foolish to
think that all Members would be saints. There would be some who
would go astray. There are ample methods under the law in the
Constitution that can prove criminal activity of a Member
without requiring rummaging through their files. I underscore
``files,'' because that is what is protected by the speech or
debate clause, not cash, not evidence, an instrumentality of
crime, drugs, a handgun, a corpse.
Many of the of attempts to satirize the claim of privilege
have attempted, I think, to distort what is at issue here by
suggesting how foolish it would be that you couldn't walk into
an office and see demonstrative evidence of crime and seize it.
Of course you can. You are not trenching on the speech or
debate clause.
But when it comes to documents, the only way you can search
is to read everything. When you read everything you encroach on
the speech or debate clause. I would urge Congress to act
swiftly in protecting the Members, not because we prefer that
crime go unpunished, but the institution prerogative is so
important to our institutional liberties, it is also, I think,
wrong to suggest that simply because a Member provokes an
investigation by the executive branch that, therefore, there
must be guilt.
Oftentimes, investigations are unable to prove any
wrongdoing. This Administration seems to operate on the
assumption that the only people who would object to any of
their investigative methods, electronic surveillances without
warrants or otherwise, being identified as an illegal combatant
and held forever without judicial review, are those who must be
held guilty in wrongdoing.
But the law and the investigators get it wrong oftentimes.
That is why we have procedural protections. The executive
branch can make errors. It's not infallible. We locked up
120,000 Japanese-Americans in World War II based on the
fallacious belief they were all plotting treason or some sort.
I would urge the Congress to work with the Senators and the
President himself in crafting this legislation. It should not
come apart because of a sense that this branch is in a position
of self-protection and indulging its own Members. You are
operating here in defense of separation of powers. That's the
highest calling of any member of the executive branch.
I would look to close also with the comment on the so-
called threat of the Attorney General, the deputy attorney
general, to resign if the speech or debate clause is enforced.
Well, let them resign.
I am astonished that the President wouldn't have fired them
for undertaking this action without consulting him in advance.
This is not esoteric constitutional law. Article I, section 6
is very explicit. If the Justice Department feels the need to
resign, so much the better. We need people there who respect
the law and the Constitution rather than those who believe
their mission is to aggrandize the executive branch.
Thank you.
Chairman Sensenbrenner. Thank you, Mr. Fein.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
Dear Mr. Chairman and Members of the Committee,
I am grateful for the opportunity to share my views on the
Executive Branch's employment of search warrants in criminal cases to
seek documentary material in various formats located in the office of a
Member. The issue has come to prominence because of the unprecedented
search of Congressman Jefferson's office for documentary evidence of
suspected bribery or fraud. I respectfully submit that such warrants
conflict with the purpose if not the letter of the Speech or Debate
Clause because they inescapably expose legislative acts to the prying
eyes of the Executive. I would urge Congress to enact a statute that
would prohibit search warrants for documents in legislative offices
comparable to the protection afforded the news media under the Privacy
Protection Act of 1980. That would not leave criminal investigators
helpless. They could still employ subpoenas to obtain relevant
documents, and obtain contempt sanctions for unjustified refusals to
comply. In some cases, the Fifth Amendment privilege against compulsory
self-incrimination might frustrate the subpoena and the criminal
investigation. In other cases, a Member might prefer contempt sanctions
to compliance. But the Speech or Debate Clause premise is that insuring
a fearless and uncowed legislative branch in some cases should trump
criminal law enforcement.
The Founding Fathers were alert to the danger of entrusting to the
executive branch or the judiciary powers to investigate, prosecute, or
punish alleged criminal activity of Members through proof of
legislative acts, including intramural correspondence and political
strategy. Such a Sword of Damocles would deter Members from opposing
legislation championed by the President or conducting forceful
oversight. The Executive's discretion to investigate is virtually
limitless. As then Attorney General Robert Jackson lectured in 1940,
the countless technical statutes in the federal code invite prosecutors
to select political opponents as potential criminals and then scour the
books to pin an offense on them, in lieu of discovering a crime and
then searching for the culprit. The Speech or Debate Clause answers
this potential prosecutorial abuse as regards Members by categorically
prohibiting the use of legislative acts to prove a crime, i.e., those
things generally said or done in the House or Senate in the performance
of legitimate official duties, such as fashioning political strategy
for passing or defeating a bill or investigating the Executive Branch.
The Founding Fathers thought it more important that crime escape
punishment than that the Congress lose its force as a check against
executive usurpations or folly.
Search warrants for documentary evidence in legislative offices are
irreconcilable with the Speech or Debate Clause. A search warrant
allows the F.B.I. to ransack the files of a Member, reading each and
every document in hopes of discovering those described in the warrant.
But legislative office files invariably include volumes of documents
within the protection of the Clause, for example, correspondence with
colleagues concerning pending or potential legislation, strategy for
``killer'' amendments, or questions for Executive Branch officials in
oversight hearings. The Clause is offended the moment the F.B.I.
peruses a constitutionally protected legislative document. Even if the
document is not seized, memory of its political contents remains in the
Executive Branch for use in thwarting congressional opposition or
leaking embarrassing political information. Documentary searches are
further intimidating to Congress because the ``plain view'' doctrine of
the Fourth Amendment would entitle the F.B.I. to seize any material in
the course of reading office files concerning crimes unconnected to the
search warrant. The knowledge by a Member that the F.B.I. can make an
unannounced raid on his legislative office to read and rummage through
every document or email is bound to discourage Congress from the
muscular check against the Executive that the Speech or Debate Clause
was calculated to foster.
A subpoena in lieu of a search warrant would permit Members to
produce only the specific documents requested and avert executive
prying into confidential legislative acts. A subpoena admittedly might
not prove as effective. The Member might invoke the Fifth Amendment to
decline production. And even if a court ordered compliance, a Member
might prefer contempt sanctions to F.B.I. agents ransacking his office
files. In other words, while requiring subpoenas and banning search
warrants to obtain documentary evidence in a Member's office could
conceivably derail a criminal investigation, that price was anticipated
by the Speech or Debate Clause to vindicate the Constitution's
separation of powers.
I would thus urge Congress to enact a statute as a necessary and
proper adjunct to the Speech or Debate Clause as follows: ``No search
warrant in a criminal investigation shall be issued to obtain documents
located in the office of a Member of Congress. A violation of this
prohibition shall result in the suppression of any evidence that would
not have been discovered but for the illegal search and the expunging
of such evidence from the records of the Executive Branch. This law
shall apply retroactively.''
It might be said that the statute is a ``special interest'' law to
protect Members of Congress and clashes with the constitutional
prohibition on titles of nobility. But the Speech or Debate Clause is
expressly and inherently a special protection for Members in
recognition that there are occasions when criminal justice should be
subordinated to the more compelling political interest and in a
fearless Congress. The Clause might be likened to the President's
pardon power, which permits the frustration of criminal justice to
advance competing interests. Moreover, the proposed statute frowning on
search warrants for documentary evidence in Members offices would work
no novelty. The Privacy Protection Act of 1980 shields the work product
of the media from search warrants. Pursuant to the Act, limitations are
erected by Department of Justice regulations, 28 C.F.R section 59, for
search warrants seeking documentary materials in the possession of
persons not suspected of crime, with special deference to confidential
relationships as may exist between lawyer and client, doctor and
patient, or clergyman and parishioner.
Today, the Speech or Debate Clause is more important than at the
Constitution's inception. Then, federal crimes were few and criminal
investigations of Members a rara avis. It was not until the 20th
century that Members began to be targets of Executive Branch criminal
investigations. And as the federal criminal code has dramatically
thickened, the opportunity for the Executive Branch to contrive an
excuse for raiding the files of a Member has correspondingly expanded.
That strengthens the reason for this Congress to erect an impenetrable
barrier between federal criminal investigations and the official files
of Members. Separation of powers is too important to be left to the
discretion of the President.
Chairman Sensenbrenner. First of all, let my say that I
think your suggestion and the suggestion of Professor Turley
that the Congress be given the same protection of its work
product that the news media has following its work product,
following the Stanford Daily case, is a good one.
This congressional Committee will be working promptly in
drafting legislation to implement this, and we will be working
with the Senate and consulting with the White House on this.
The issue really is one of procedure, rather than one of
the allegations of criminality by Mr. Jefferson. I think that
we want to make sure that when the next Congressman is
investigated for illegal activity, that the procedure done by
the Justice Department is right. So I think this law will help
the Justice Department get it right next time because they
didn't get it right this time.
The second point I would like to make is that I would like
to have at least two more hearings on this subject, another
hearing where people such as yourselves can talk about the
historic and constitutional arguments as a result of the speech
and debate clause evolving over the last 219 years.
Then I want Attorney General Gonzales and FBI Director
Mueller up here to tell us how they reached the conclusion that
they did. Because I think all of you have said that reaching
that conclusion is profoundly disturbing, not in the context of
the Jefferson investigation, but in the context of separation
of powers and preventing the Congress from being intimidated by
the executive branch, and thus not being able to do the job
that we were elected to do.
Having said that, Mr. Fein, schedule B of the search
warrants lists ``items to be seized from Representative
Jefferson's congressional office.'' That has all been redacted
by the Justice Department.
Whatever is on that list, and I think only the Justice
Department knows, shouldn't someone representing the
institutional interests of a co-equal legislative branch of
Government have been given the opportunity to argue to a court
whether or not the procedures and the list comported with
constitutional norms were not?
Mr. Fein. Well, that certainly would have been the
appropriate thing to do. After all, the FBI is not schooled in
speech or debate clause. They wouldn't necessarily know whether
they were coming upon a protected document or not. At least
someone in the legislative branch could alert the judge and
have perhaps special descriptions of documents that could not
be examined in the execution of this warrant.
But I come back, Mr. Chairman, to the idea that inherent in
executing any search for documents is going to necessitate
someone rummaging through that official file. It's going to
require reading legislative protected materials. You can't
expunge memory. Once you have read it, the violation has
occurred. That's the same reason why this Congress enacted the
Privacy Protection Act for the news media.
Once the constitutional resource is discovered in rummaging
through the press files, the name doesn't just fall away by
amnesia. That is why I think this broad-based statutory
protection is indispensable, even though procedural mechanisms
could alleviate the danger.
Chairman Sensenbrenner. Also, isn't the issue very similar
to testimonial privileges that are given to clients of lawyers
and patients of doctors and penitents who confess their sins to
priests, in that the determination of what is privileged or not
belongs to the person who has the privilege, rather than
someone who wants to look at privileged material and then
determine whether or not it is privileged after seeing it all?
Mr. Fein. That's correct, Mr. Chairman, and in connection
with the Privacy Protection Act that created this blanket
protection for the news media, was also a section title 2, that
required the Department of Justice to issue regulations that
specifically would protect the lawyer-client, doctor-patient,
clergy-parishioner privilege from unmitigated search warrants
and requiring some sort of in-camera judicial review of a
warrant to determine whether or not they were protecting
materials.
So those relationships have been protected especially by
regulation demanded by this Congress. But the Congress here has
a superior claim of privilege. It is written right into the
Constitution of the United States and is so critical to
vindicating separation of powers that transcends these other
confidential relationships that are important but don't have
that constitutional stature.
Chairman Sensenbrenner. Thank you very much.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I want to thank the
witnesses in particular. This is a very appropriate group of
four, well-trained experienced people, coming before us to
advise the Committee, and, by extension, the American people of
the gravity of the problems that we face.
Now, was it proper for the Justice Department to prevent
the House counsel, as well as the Congressman's attorney, from
being permitted to be present while his offices were searched
for some 18 hours? What were they trying to do, Professor
Turley, in that particular sorry exercise of authority?
Mr. Turley. Well, that's one of the most baffling aspects
of the search. The ironic thing is that when the House general
counsel said, can I be present to witness the search, she was
actually suggesting something that would have been of great
benefit to the executive branch.
If they had simply allowed her in the room, they could have
claimed some element of mitigation, some aspect of moderation.
Excluding her was an extraordinary act. All she wanted to be
able to have a legislative official present. It really does
cross over into raw arrogance to tell such a legislative
official, we won't even let you stand in the office.
As for the attorney, rule 41 of Federal Rules of Criminal
Procedure, anticipate that an attorney or the subject of a
search will be present. Most search warrants, as those of us
who practice criminal defense law will tell you, most search
warrants will have an inventory provision where you actually
sign off as to what was taken.
For the FBI to say it's no longer our policy to allow
someone present during such a search once again brings up this
question of whether we now have such unbridled authority and
arrogance that the executive branch will not even allow
witnesses to the execution of its authority.
Mr. Conyers. Professor Tiefer, what do you think was behind
the fact that we haven't ever had this happen before in 219
years? Was there some motivation that still wasn't clear on the
part of the Department of Justice to act in the face of all the
restrictions that have been recited here this morning?
[10:30 a.m.]
Mr. Tiefer. Mr. Conyers, I tried to understand both from
what records we have and from information that the FBI has
leaked to the newspapers what the surrounding circumstances
were here. There is no sign whatsoever of a claim by the
Department of Justice, as I said in my opening statement, no
claim, nor could there be, but the point is they are not even
claiming they were facing an emergency, facing exigent
circumstances, facing a situation where they couldn't get at
the evidence the same way. They were simply in a hurry.
They seemed to have been in a hurry because they got
themselves into a problem with an appeal from a proceeding in
another district, and they didn't move that appeal along fast
enough and they weren't willing to do, as Professor Turley
suggested, to apply to a District Court for a court order,
something which they could always do which could allow
adversary proceedings and could involve supervision of the
methods and could involve consultation with the congressional
leadership and could involve some protocols, and would have
brought us closer to the tradition of the last two centuries.
There has not been any suggestion whatsoever as to why
there was a need to break with that tradition. They are
investigating a Congressman. Is it different from all the other
prior investigations of Congressmen? No.
Mr. Conyers. Congressman Walker, the part that disturbs me
as much as any other is that they told the Capitol Police that
they were going to break down the doors of this congressional
office if they didn't stand aside and let them in without any
further to do, and it seems to me that that was really an act
of threatened violence that goes way, way across the line.
Mr. Walker. Well, I certainly agree with that, and what, as
I say, what does concern me as well is that the whole warrant
process to basically place a threat upon the Capitol Police, if
they didn't cooperate that all sorts of things were going to
happen, strikes me as being a complete overreach.
And so, as has been mentioned in the testimony here, what
you have that is particularly disturbing is the executive and
the judicial branches teaming to make a raid on the Congress
with, as I said in my testimony, malice aforethought.
Mr. Conyers. Thank you, sir.
The Chairman. The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. Here is a quote. ``I
said to the President, if the equilibrium of the three great
bodies, legislative, executive, and judiciary, could be
preserved, if the legislature could be kept independent, I
should never fear the result of such a Government, but that I
could not but be uneasy when I saw the executive had swallowed
up the legislative branch.''
The President to whom that was spoken was named Washington
and Thomas Jefferson is the one that said it. Apparently, this
has been an ongoing struggle to keep this delicate balance of
power going.
Now, in looking at precedent, as I have heard some people
on television react, who perhaps were in the boat that I was
originally, as a judge, a State judge, trial judge and former
chief justice of an intermediate State court of appeals, I have
signed hundreds, I don't know, thousands of warrants, reviewed
lots of affidavits, gee, I'd never had an article I, section 6
question come up before. So I was unfamiliar with this, but
began to do some digging.
You may have heard other people say in the media that, gee,
there is a precedent for this because the Department of Justice
has gone in and searched a judge's offices before. For whoever
may wish to address that, could I get some comment on that
being cited as a precedent? Mr. Fein?
Mr. Fein. Mr. Member, if you look at article III of the
Constitution, which addresses judicial power, there isn't
anything comparable to the Speech or Debate Clause. We're
addressing an explicit recognition by the Founding Fathers that
the legislative branch needed special protection. They had
experience with the efforts of the British King and executive
to attempt to intimidate Parliament through criminal
prosecutions and investigations. So they made a special effort
to strengthen Congress' institutional capacity to check the
executive or the judicial branches. They didn't fear that the
judges would be intimidated. There is no express guarantee of a
speech or debate kind of privilege on that score.
And it also seems to me that today, as opposed to at the
founding, the danger of encroachment on speech or debate is far
greater. At the outset, there were relatively few Federal
crimes. We didn't have an FBI, there wasn't even a Department
of Justice created to investigate until 1870. Today, there are
so many crimes on the books, it's as then Attorney General
Robert Jackson said in 1940, the danger is the prosecutor at
the executive branch looks at a legislator and then scours the
books to pin an offense or investigation on him rather than
finding a crime and then searching for the culprit. You know,
you can get a prosecutor to indict a ham sandwich.
Mr. Gohmert. Have you been to Texas?
Mr. Fein. I think that's a more universal attribute on the
prosecutor.
Mr. Gohmert. Okay. I know it's true in Texas.
Mr. Fein. But if you have an executive branch eager to use
search warrants in any criminal investigation, it can be any
Member of Congress.
Mr. Gohmert. So there is no real parallel between searching
a judge's office under the Constitution and searching a Member
of Congress or the Senate's office?
Mr. Fein. I don't want to say there is no parallel, no
indication that there isn't some enclave of privilege there,
but it's not risen to the same constitutional dignity or
importance as the Speech and Debate Clause.
Mr. Gohmert. Well, all of you mention the Speech and Debate
Clause as being what is at issue here, and I have also heard
people on television, so-called media experts, say, and they
will put the language of the section 6 on the TV screen and
say, see there, it's talking about speech and debate, it's not
talking about documents; where do you get that?
So if someone could address how in the world we get from
speech and debate to documents, or hard drives. 'cause I've
looked, hard drives is not mentioned in here.
Mr. Turley. Well, you know, that's an excellent question.
First of all, there's a lot of misinformation about reading
that clause. If you look at the Federal Convention, there was
very little discussion about the clause, in part because
Members, I think, believed it was obvious that there had to be
privileges for the legislature.
Since 1541, the English Parliament had cited this privilege
in their continual problems with the Stuart and Tudor monarchs.
And so by the time the Constitutional Convention came around,
it was already established that a legislature has a unique need
for this type of privilege.
And, by the way, there is this great irony in this
Administration that there seems to be no limits as to claims of
what executive privilege means; that executive privilege covers
the Vice President, covers everything that comes within a mile
of the White House.
Executive privilege isn't mentioned in the Constitution. It
was created by the courts, and yet you have this robust
interpretation. But the privilege that is mentioned apparently
is too small to even slow an FBI raid on an office.
Now, the one thing I want to emphasize is when the language
therefore refers to speech or debate, the Supreme Court has
been very, very clear that that goes beyond the literal meaning
of those terms, and it is very broad if you take a look at some
of the cases I cited in our papers. That at least is not, I
assume, under debate.
Chairman Sensenbrenner. Before I forget it, without
objection, the witnesses' statements will appear in full in the
record prior to their verbal testimony.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you. Well, Mr. Turley, let's kind of
follow up on a that a little bit. The section 6, clause I says
that ``they shall in all cases, except for 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 and
debate in any House they shall not be questioned in any other
place.''
Does that immunize Members of Congress from answering for
the commission of a crime?
Mr. Turley. No. And this is one of the great
misrepresentations we have seen in commentary. Nobody I know is
arguing that this clause immunizes Members because of their
status as Members of this institution.
Mr. Scott. Let me follow through on another question. In
the execution of a search warrant, normally when you go to
somebody's house to execute a search warrant, they are there.
Mr. Turley. Right.
Mr. Scott. They can contest it. They can tell you that
you're at the wrong house. You have an opportunity to respond.
Was any opportunity like that given in this case, to your
knowledge?
Mr. Turley. No. In fact, they were barred. You have both
the Representative of the institution and the legal
representation of the individual both being barred from being
present for this very, very long search.
Mr. Scott. Now, we've heard about the exemption for
searching press offices, and we've heard references to
searching judicial offices. Those are inferior courts. Would it
be different if we were talking about searching, rummaging
through files at the Supreme Court?
Mr. Turley. Since they ultimately interpret the
Constitution, I expect they would find a robust privilege
somewhere. But we have seen the courts create significant
protections for their own branch and for the executive branch.
In my view, the Supreme Court has too narrowly interpreted
the Speech or Debate Clause. I think if you look back at the
statements of Jefferson and Madison, after the sedition
prosecutions by John Adams, you will see very clear statements
that they viewed speech or debate goes to an even broader range
than the current doctrine would allow.
But all of that is for an academic debate. The material in
this case is, without question, legislative material covered by
the clause. I can't imagine anybody would suggest a Member's
hard drive would not fit in there. And it's true it's not
mentioned, but the best thing to remember is that everything
that used to be in paper form, when Jefferson and Madison were
criticizing Adams, all of that paper today would be found on a
hard drive. So it is the equivalent of doing a sweep through a
Member's office back then and taking every single piece of
paper in the office.
Mr. Scott. Well, in terms of setting up a procedure,
similar to the exemptions in the press situation, we've heard a
suggestion that the Speaker of the House be notified.
You'll have to excuse me that this Democrat isn't
particularly impressed with the Republican President notifying
the Republican Speaker of the House that he's about to raid a
Democratic office as a protection.
Do we have any idea of who decides what gets looked at and
does the fact that a Member cooperates or is not cooperating?
Is that relevant to the discussion?
Mr. Tiefer. If I may, Mr. Scott, I have some familiarity
with the procedures. I actually want to mention something that
both I----
Mr. Scott. Let me ask another question, then everybody can
kind of comment on it.
And would it make a difference if you had a reliable
informant tell you where the drugs were or where the money is,
you went in, got that, and got out? Would that make a
difference in all this?
Mr. Tiefer. That is too colorful for me. Let me go back to
the drier procedural question you asked earlier, and I'll
leave----
Both I and Professor Turley cited the fact that the U.S.
Attorney's manual itself, the internal Justice Department
manual, it's posted on the web, but the manual by which they
tell themselves what procedures they're supposed to follow in
the Justice Department and the FBI has an entire section,
section 2046, about when they come to Congress for evidence.
And it specifically says: ``the customary practice when seeking
information from the legislative branch, which is not voluntary
forthcoming from a Senator or Member, is to route the request
to the Clerk of the House or the Secretary of the Senate.''
That's the way. Now, when they say the Clerk of the House,
the Clerk of the House is a surrogate. The Clerk of the House
and the General Counsel of the House report to the Speaker and
bipartisan leadership group. That's the roles that the minority
and majority have worked out within that framework. It may be
satisfactory sometimes, it may not be other times, but it
starts as a potentially bipartisan framework and it is not
something political.
This is in the U.S. Attorney's manual. This isn't a
political guide to how political things are done. This is a
legal guide to how prosecutorial and investigative things are
to be done, because of the way papers within the Congress are
deemed to be available.
So was there a proper way to seek these papers? There was.
Does asking the Speaker in advance have a role? It does.
Following the U.S. Attorney's manual, one consults with the
Chamber so that the processes will be proper. Does that stop
the evidence from being sought? Absolutely not. It just makes
it be done right.
Chairman Sensenbrenner. The gentleman from California----
Mr. Scott. Mr. Chairman, may Mr. Fein answer the follow-up
question?
Chairman Sensenbrenner. Mr. Fein.
Mr. Fein. Yes. With regard to searching for cash or
instrumentalities of crime, there isn't a Speech or Debate
Clause problem. There are elements of comity, but you're not
getting into elements of deliberations if you are searching for
cash. You don't have to read the documents. It's the
requirement that you read every document and file in the office
to know whether or not you're identifying something that
responds to the warrant that is the intrusion on the Speech or
Debate Clause.
I want to give a clear example. Suppose we go back to the
impeachment proceedings with regard to President Clinton, and
in the files of Members on the Judiciary Committee could be
evidence or questions they are going to ask witnesses. You
would not want to have the FBI of the Clinton administration
coming into that Member's office and saying, gee, we think
there may be an election law violation, we've got to read
through every single document in your file, including the
questions you may be asking during the impeachment inquiry, in
order to determine whether we need to continue this particular
proceeding.
That is clearly an invasion of Speech or Debate Clause
evidence, which would then be in the executive branch's ability
to know how to evade or rebut the impeachment prosecution. That
is what I think Professor Turley meant in explaining that the
Speech or Debate Clause includes more than just what you say on
the floor of Congress. It relates to those communications that
are indispensable to discharging your functions as a
legislator.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Fein, you have prepared everything for my few
questions. You know, it's interesting to me that it's alleged
that J. Edgar Hoover wiretapped or bugged Goldwater's aircraft
on the request of Lyndon Johnson because there was no law
preventing it at the time. And so he did what the President
ordered him to do.
Constitutional challenge? Not in the strict sense. Chilling
effect on the ability for an incumbent to ever not win
reelection? Yeah, I'd say it was. And this body passed laws
that make that a crime today, a crime affecting the President.
It's an interesting question, though, about laws, and I'm
going to ask it as someone who came to this legislative body
not to pass laws unless absolutely necessary. Do you really
pass laws to protect the strict letter of the Constitution?
We have, and I hope this is appropriately controversial, we
have the power to impeach the Attorney General. We have the
power to impeach that particular judge who decided that our
body, particularly even our own very small police force, had no
powers to stop the other two branches.
Now, I'm not sure that Articles of Impeachment are going to
come out today. I think we're a couple shakes short of a quorum
for that purpose, although I suspect Members would quickly be
here if it was brought by the Chair.
Chairman Sensenbrenner. If the gentleman will yield. Not
yet.
Mr. Issa. Thank you, Mr. Chairman, happy to have yielded.
Reclaiming my time, my question to all of you, because we
are here talking about something that we're not doing on
behalf, as Mr. Scott might have said, we're not doing this as a
Republican Congress on behalf of a Democrat, we're doing this
out of the deep concern that this time it was about criminal
behavior, this time this Member of Congress, Congressman
Jefferson, was not investigating the President, seeking
impeachment, so it seems like there was no attempt overtly to
reduce the speech and debate or to in some way attack this
body, although they accomplished it.
But my question, unless we get a second round perhaps my
only question to you is, do we really need a law or should we
in fact use the powers we have as a separate co-equal body to
provide the appropriate checks and balances of those who have
abused clear constitutional guidelines?
And I will start with Congressman Walker because I admired
his work while he was here.
Mr. Walker. Thank you, Mr. Issa.
You will notice that in my testimony I did not specifically
call for a law, and I did that consciously. Because as I
considered this, I thought to myself, I'm not certain but what
a law does not diminish the constitutional authority; that as
soon as you place a law of procedures, that that may have a
diminishing effect on the very nature of the Constitution.
I'm not an attorney, but I reacted to it as a politician,
just saying, I'm not certain that that's the route to go in
this particular case. And what I'm concerned about is that we
would tend to have a law that reacts to this particular
situation, and yet the precedent being set here may have vastly
more extensive implications to it.
For example, at the Justice Department right now it appears
as though they are headed toward trying to create a new
circumstance where campaign contributions can be regarded as
bribes of Members of Congress. Will we then have a wave of
raids on Capitol Hill to look at Members' records to find out
whether or not they have taken campaign contributions that
relate to their legislative duties? If this precedent is
allowed to stand, it seems to me that that's a danger going
forward.
Again, I say that not as a lawyer, which I'm not, but as a
politician who just kind of reads the tea leaves and says these
are concerns that I think Congress ought to be very aware of.
Mr. Issa. I want to give everyone else a chance to answer,
but I will interject that perhaps they've listened to special
orders late in the night in this body talking about the
President's taking of money from various oil companies and the
assertion that somehow because they had a campaign contribution
it was the equivalent of a bribe. Perhaps we gave the Attorney
General's office exactly that wrong-minded idea.
Professor Turley.
Mr. Turley. First of all, I want to say that what
Congressman Walker just said is absolutely true; that we have
to be careful that we don't affirm a view that there's not a
preexisting duty. But, in fact, there are other statutes that
amplify and create procedures for existing constitutional
rights.
What I would encourage you to do is not just pass this law
but to make it clear that you are not conceding this point;
that in fact you believe you have the inherent authority; but
this, like those other laws, is designed to create procedures
and to amplify the existing constitutional right. And I think
in that sense you are right.
But I also want to encourage you that the Framers gave you
the ability of self-defense. You have appropriations authority,
oversight authority, and you have ultimately the impeachment
authority. And I don't consider that to be such a trivial
question. I think that when you have an offense that strikes at
the separation of powers, you are talking about something that
threatens the very stability of the system. You have those
powers, and I hope that you will use them. Because the Framers
expected that you would jealously protect your own authority.
Because I promise you, the other branches are not likely to do
so with as equal vigor.
Mr. Fein. With regard to a statutory approach, I think the
necessary and proper clause, article I, section 8, clause 18,
was calculated to accomplish precisely what a statute would do.
That empowers Congress to enact any law that's appropriate for
the execution of any power belonging to any branch of
Government, executive, legislative, or otherwise.
An example in my judgment of the use of the necessary and
proper clause was the passage of the Foreign Intelligence
Surveillance Act, which has been so much discussed. That is,
whether or not the President might have inherent authority to
gather foreign intelligence wherever he wanted if Congress said
nothing; that Congress, after holding exhaustive hearings, said
we want to regulate the gathering so it doesn't encroach on
fourth amendment rights. The same thing would be true by this
statute.
And I think that's superior than a case-by-case approach
under the Constitution that will take years and years of
litigation, up to the Supreme Court and back again, before
there is anything that even closely resembles the clarity of a
statute. It's best to decide now.
With regard to the alternate mechanisms that Congress holds
to hold the executive branch accountable, they are there, as
Professor Turley announced. But the greater the flexibility,
the more likely sensible uses will be made. An impeachment
proceeding really is totally disproportionate to an issue of
this sort unless it remains systematic. A statute seems to me
the first place that something ought to be tried before you
resort to more drastic remedies.
Chairman Sensenbrenner. The gentleman from Maryland, Mr.
Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman, and thank all of
you for your testimony. And, Mr. Chairman, I was pleased to
hear you say you are also intending to call the Attorney
General as well as Mr. Mueller because I'm interested in what
they have to say. And I also think at these hearings it's
important to have both sides represented as much as possible. I
hope even the next panel you mentioned we will have both views.
Far be it from me to defend the executive branch, but I just
think in terms of getting all the facts out and a full range of
views, that would be helpful to everybody.
Professor Turley, you mentioned it is a catharsis, but I do
think it's important to very briefly list on page five of your
testimony the number of examples of overreaching by the
executive branch where there's been a total lack of oversight
by this Congress: The torture memorandum, detainees, enemy
combatants, signing statements, domestic surveillance, data
mining operations.
All important issues. And Members of this Committee may
come down on different sides of those issues, but we should
still have the oversight and the hearings so we can get the
facts out and let people make a reasoned judgment about what
the Administration is doing.
So, again, I'm pleased that we're having oversight on this
issue, but I think there are so many other issues important to
the American people that demand greater oversight.
Now, if I could ask you, Mr. Fein, with respect to the idea
of having a statute to address this issue. A statute passed by
the Congress, of course, is subject to a veto by the President.
And it does raise the question that Mr. Walker raised, and I
was thinking myself, doesn't this in some way, couldn't this be
interpreted in some way as an admission that the Congress does
not have the constitutional authorities that you talked about?
And what would happen if the President vetoed it and
Congress then failed to override the veto for some reason?
Would that not be interpreted as a sort of surrender of some of
our claimed constitutional authorities?
Mr. Fein. I don't think so. I think Congress can make clear
that they are enacting the statute out of an excess of caution
to avoid the delays involved in litigating with regard to the
constitutional standard, and making clear that you're not
yielding any argument that the Speech or Debate Clause on its
own wouldn't have invalidated the warrant that was signed by
Judge Hogan.
With regard to an executive branch veto, I suppose that's
possible, but that's part of the legislative process. At least
the President, then, would be open and clear to the American
people as to what kind of authority he wanted to grant his
executive branch and could be held accountable accordingly.
It seems to me, however, that the bipartisan support for
this hearing suggests that a veto would be very unlikely,
especially since the Vice President, Mr. Cheney, has voiced
some objection or qualms about what was done here, and he seems
to have substantial influence in the White House.
Mr. Van Hollen. All right. Now, as I understand the
testimony of Professor Turley, and I don't know if you share
the view, but the actual search warrant itself was deemed to
be--you judged that to be constitutional. The question has been
the means and the scope of the documents looked at.
I'm interested whether you all share that view, but with
respect to the proposals, I understand you would prohibit
search warrants for documents in legislative offices, period?
Mr. Fein. Yes. And that's why I think a search warrant for
documents, on its face, is unconstitutional. Because you have
to read all the files to know whether you have hit upon the
document responsive to the warrant.
Mr. Van Hollen. Well, let me ask you this hypothetical,
though, because there are many forms of documents. What if you
had a search warrant that specified specific documents that the
FBI, or whoever it was, had good reason to believe were in a
congressional office. And let's further presume that maybe it's
one or two documents and they also believe there was a fear
that if they announced in advance that that document would be
missing.
Let me give you a hypothetical. In the Congressman Duke
Cunningham case, there was apparently a napkin or a piece of
paper that specified specific earmarks, and next to each
earmark specified the amount of bribe that would be given in
exchange. Let's say they believed that that document was in
Congressman Cunningham's office and that they believed there
was a real danger that if they provided advance notice that it
would disappear, and you went to a Federal judge.
Under your statute, that would be prohibited even if you
were looking for one document. Is that your intent? Under that
circumstance, should we allow, under that kind of circumstance,
should we allow for a search warrant of a congressional office?
Mr. Fein. If you're talking about something that can be
described in a way that enables it to be searched without
reading all the files, then there is not a problem. But
ordinarily a Member isn't going to put a special file and say
this particular paper relates to the bribe or the money I've
received. And the only way that you can determine whether or
not a document is responsive to the warrant is reading a lot of
files that aren't responsive because you don't know which one
you've come upon or whether you've exhausted the total number.
That's the difficulty. If you are talking about some mosaic
or cuneiform which isn't in the file, then you don't have that
problem because you don't need to read all those documents to
know whether you're looking at cuneiform. That's why I think
the hypothetical you've raised really is not going to raise a
problem if it's written on a napkin that isn't mixed in files
which couldn't be readily separated.
Mr. Van Hollen. Well, it could be on a separate piece of
paper that looked like everything else.
Chairman Sensenbrenner. Professor Turley.
Mr. Turley. Yes, I never disagree with Bruce, because I
usually find out later I'm wrong, but I'll disagree just
slightly here, and I'm not sure it is a disagreement.
But I believe that a search would still be inappropriate
the way it was conducted here, even if you know that there is
physical evidence in an office. And I think that Professor
Tiefer actually has addressed this as well.
There is a way you can do it, and how we do things in our
system means a lot. So even if you have the napkin with the
bribe list on it, what they should do then is to go to the
House of Representatives and secure the material so there is no
danger it will be lost and then work through the legislative
branch to get it. That's how it's been done throughout our
history. There's never been a problem that preexisted. So how
we do it.
And when you mentioned my position as to the warrant, my
point is that there was clearly probable cause here. That is
not an issue. Finding 90 grand in a freezer gives you a pretty
good basis for probable cause. And once you do that, most
offices and dwellings and places that you frequent fall within
that gambit. So probable cause is not a question. Their
interest in the material is not a question. Even if it's
redundant, according to his defense attorneys, they believed
that in fact the Government already had much of this material.
But even if it's redundant, they still have an interest in
getting it. It's a question of means.
Chairman Sensenbrenner. The gentleman's time has expired.
For what purpose does the gentleman from Texas seek
recognition?
Mr. Gohmert. Mr. Chairman, I ask unanimous consent to just
make a comment about the warrant that I think has been wholly
missed here.
Chairman Sensenbrenner. Without objection.
Mr. Gohmert. You guys are great, and I appreciate your
intellect, as well as all the experts out there in the media,
but it seems that everyone has presumed that this warrant had
some protections built into it. But I would humbly submit to
you this warrant has absolutely no protections built into it.
It is a form warrant, and the only addition is the judge wrote
in: ``the U.S. Capitol Police are directed'' I guess that's the
proper verb, but ``Police are directed to provide access to the
property.''
But it's a form warrant. Over here in the affidavit it says
``I have been informed by the prosecutor overseeing the
investigation in this matter"--obviously hearsay--"that they
have decided to adopt special procedures.'' but when I have had
a warrant as a judge that required special procedures, normally
I set them out. This judge just simply says ``you are commanded
to search for the person or property specified.''
There are no safeguards in this warrant. He says go have at
it, without any assurance that any privilege will be afforded
anything.
Thank you.
Chairman Sensenbrenner. Thank you very much. I'd like to
thank all of the witnesses for their very relevant testimony.
This is a constitutional issue that is a matter of great
concern, and the separation of powers and the checks and
balances were put into our Constitution by the framers to make
sure that no person or no branch of Government got too
powerful. And it was a direct reaction against the notion of
parliamentary supremacy where all three functions of Government
were combined in the British Parliament, which exists to this
day.
When I have talked to students about the Constitution, I
have said that the Constitution was a reaction against the
excesses of the British Parliament. They did not want to have
the executive, legislative, and judicial functions being put in
the same institution as they are in the United Kingdom. That is
why we have three branches. It is also why there were the
checks and balances put in, to make sure that the excesses of
one branch could be checked by the other two, or the excesses
of two branches could be checked by the third.
It's worked for 219 years. There's no reason to ignore the
219 years of success of separation of powers and checks and
balances, and that's why we're here today. And I thank all four
of you for shedding light on why we have the separation of
powers and the dangers that were employed a couple of weeks
ago.
I'd also like to thank the Members who have participated in
this hearing for taking some of their recess time to basically
come out here to defend the Constitution.
So having said that, without objection, the hearing is
adjourned.
[Whereupon, at 11:02 a.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Response to Post-Hearing questions from the Honorable Robert S. Walker,
Chairman, Wexler & Walker, and former Member of Congress from the State
of Pennsylvania
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Response to Post-Hearing questions from Jonathan Turley, J.B. & Maurice
C. Shapiro Professor of Public Interest Law, The George Washington
University Law School
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Response to Post-Hearing questions from Bruce Fein, Principal,
The Lichfield Group, Inc.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
``Memorandum in Support of Motion for Return of Property''
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
``Motion for Return of Property and Emergency Motion for Interim
Relief''
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<all>