Bush Orders Jefferson Documents Sealed

President Bush has sealed the records seized by the FBI from Rep. William Jefferson's congressional office.

The president directed that no one involved in the investigation have access to the documents taken last weekend from the office of Rep. William Jefferson, D-La., and that they remain in the custody of the Justice Department's solicitor general.

Bush's move was described as an attempt to cool off a heated confrontation between his administration and leaders of House leaders of both parties, particularly Speaker Dennis Hastert.

The Solicitor General's office? A commenter at Law Prof Orrin Kerr's blog says:

The Solicitor General's office is an impenetrable lockbox! It is clothed in sovereign immunity from everything! What's more, the Solicitor General's offices cannot be breached by a warrant! The Solicitor General speaks and debates before the Supreme Court and thus is protected by Article III AND Article I.

Instapundit weighs in:

Could Al Qaeda have slipped mind-altering drugs into the DC water supply? What's gotten into these people? Or has some sort of deal been cut? Whatever it is, I don't think I like it.

The Washington Post reports:

Bush hoped to mollify Hastert, one of his most reliable legislative allies, at a time of increasingly sour relations with the GOP-controlled Congress, according to White House sources. Tempers rose so high this week that some House Republicans threatened to seek the resignation of Attorney General Alberto R. Gonzales, although GOP leaders said the idea was not seriously considered.

As to Hastert's role, he gave Bush an earful on Air Force One.

On the ride home aboard Air Force One, Hastert was adamant that the Justice Department had violated the Constitution and implored the president to intervene, the sources said. The next day, the two spoke by phone and Hastert told Bush he and other leaders would only intensify their campaign to stop Justice from sifting through the materials seized in the weekend search, according to the accounts.

Is it just coincidence that the feds leaked info to ABC News -- later denied by the Justice Department -- that Hastert was under investigation in the corruption scandals?

And guess whose fingerprints are all over this sealing order?

Bush had Vice President Cheney call Hastert to inform him of his decision.

I'm not getting the separation of powers argument. Neither is Last Night in Little Rock, who just happens to be a major 4th Amendment expert. In his words:

In Rep. Jefferson's case, however, "separation of powers" just won't cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that.....

In agreement on the 4th Amendment issue: White Collar Crime Blog

The Fourth Amendment does not afford any specific protection to legislative offices so long as there is probable cause to believe that there is evidence of criminal activity at the location specified, and the House of Representatives would not have standing to raise a Fourth Amendment claim on its own.

It predicts the issue Jefferson will take to the Supreme Court should the case rise that far is the Speech and Debate Clause issue:

The two leading Supreme Court cases on the scope of the Speech or Debate Clause are United States v. Brewster, 408 U.S. 501 (1972), and United States v. Helstoski, 442 U.S. 477 (1979). In Brewster, the Court stated, "[A] Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." In Helstoski, the Court explained,

Likewise, a promise to introduce a bill is not a legislative act. As to what restrictions the Clause places on the admission of evidence, our concern is not with the "specificity" of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other "legislative acts" such as utterances in committee hearings and reports. But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not a legislative act.

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    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#1)
    by squeaky on Thu May 25, 2006 at 09:02:45 PM EST
    The Solicitor General speaks and debates before the Supreme Court and thus is protected by Article III AND Article I.
    What a prescient spot for thes docs.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#2)
    by Talkleft Visitor on Thu May 25, 2006 at 09:09:15 PM EST
    After all the stonewalling on the NSA issues with 4th Amendment on the part of the Republican members of Congress I'm not surprised that they're struggling with misunderstanding/misusing the Separation of Powers issue. Instead they seem to follow whatever issues gives them the most outrage leverage. Go figure.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#3)
    by Talkleft Visitor on Thu May 25, 2006 at 09:18:48 PM EST
    I think it's all a big ruse, an elaborate fake to keep Jefferson in office in order to have a corrupt Dem around to provide a rebuttal to charges of GOP corruption in November. It makes absolutely no sense for Hastert to let everything else go but get upset to a degree that he tries to act bipartisanly on this issue. If Jefferson is indicted in October, I'm going to dig up this post and promote it across the web. Regardless, I'm happy that Nancy Pelosi is playing hardball. It's about time someone in the party does. Sorry, CBC, but no one sheds any tears for someone caught on tape by the FBI with $90k in cash in their freezer.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#4)
    by Talkleft Visitor on Thu May 25, 2006 at 09:21:27 PM EST
    I'm not sure the issue is so clear cut. If they seized the congressman's papers, then the issue might turn on exactly what those papers were. Drafts of bills or amendments? The work product of a congressman in preparing possible legislation very well might be protected by the Speech and Debate Clause. Unfortunately, we don't know what papers were seized, but I'm just imagining possible scenarios of papers congressmen might have that we wouldn't want the FBI seizing. It isn't hard to imagine.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#5)
    by Andreas on Thu May 25, 2006 at 10:33:35 PM EST
    The WSWS writes:
    In a remarkable acknowledgment of the sharpness of the confrontation between the executive and legislative branches, Bush said, "Our government has not faced such a dilemma in more than two centuries." He noted that the "bipartisan leadership of the House of Representatives believes this search violated the constitutional principle of separation of powers and the speech and debate clause of the Constitution." ... The reasons for the raid on Jefferson's office have nothing to do with fighting corruption, and everything to do with the drive by the clique around Bush and Vice President Dick Cheney to intimidate and silence critics, forestall any investigation into the administration's own illegal actions, and move toward the establishment of a form of presidential dictatorship. ... Hastert's assumption that the ABC News report was an act of intimidation and retaliation by the Bush administration--even were it to prove unfounded--says a great deal about the state of American politics. The titular head of the House of Representatives takes as a given that the top figures in the executive branch, and the leaders of his own party, would not hesitate to employ blackmail, character assassination and the threat of criminal prosecution to silence him and anyone else who stood in their way. It is an open secret in Washington, discussed in private but concealed from the American people, that the US is heading in the direction of a police state, and that those who wield both corporate and political power have no democratic scruples.
    Constitutional crisis over FBI raid on US congressman By Joe Kay and Barry Grey, 26 May 2006

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#6)
    by Talkleft Visitor on Fri May 26, 2006 at 12:12:00 AM EST
    TL, can you clarify what happens when documents are sealed. 1. Does someone physically remove them from the FBI's offices, or whereever they were at the time they were ordered sealed? 2. If so, how do the removers know that they have everything? 3. And what if some of the sealed documents had already been copied?

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#7)
    by Talkleft Visitor on Fri May 26, 2006 at 12:40:51 AM EST
    This action seems to fall in line with the Bushco method of defusing all criticism by characterizing it as "politics as usual". And as long as there is ongoing argument and debate, nothing actually stops them from continuing to act illegally. Now they have created a situation in which congress is protesting actions by the executive branch. Later, if and when congress ever votes to subpoena any WH records, they will assert their right to refuse to comply, and their arguments will refer back to this confrontation. I probably have the legal details all wrong, but this is how it looks to me.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#8)
    by jimakaPPJ on Fri May 26, 2006 at 12:54:09 AM EST
    Let me see. The FBI has raided the office of an apparenty corrupt Congressman and taken papers. The House has its panties in a wad claiming a violation of separtion of powers. Bush says, okay, I'll just seal the papers until this can be sorted out. And the problem is???

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#9)
    by Che's Lounge on Fri May 26, 2006 at 01:40:00 AM EST
    The problem is that the shoe is on the other foot LOL. The FBI has been kicking down doors as "lawful searches" for decades. Mr. Haster et al seem to think this does not apply to them. We'll see.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#10)
    by Che's Lounge on Fri May 26, 2006 at 01:40:31 AM EST
    Sorry Hastert.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#11)
    by Talkleft Visitor on Fri May 26, 2006 at 01:51:49 AM EST
    I can say this one thing for certain. There is one thing we all can agree on is no matter what the issue is if it's based on corruptness or for the good of the people. This Government will find a way to mess it up.What a bungling bunch of imbeciles. Simply Amazing.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#12)
    by Talkleft Visitor on Fri May 26, 2006 at 01:56:14 AM EST
    I just have a few questions: Why hasn't Congressman Jefferson been charged with any crime yet? Also, if the videotapes were made in August and the money was found in August and the subpoena was sent in August, why are they just now raiding his office? Why is what they were searching for blacked out on the warrant? What could have have been so important for them to retrieve from his office, if they already have the videotape and the money? And why did they refuse to let the sergeant at arms and the House counsel observe their search?

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#13)
    by Talkleft Visitor on Fri May 26, 2006 at 04:45:43 AM EST
    This appears to be yet another encroachment by the executive, one that it will be able to cite as precedent when the Congress investigates the malfeasance in this administration. By what authority can Bush seal evidence of a federal crime? Why 45 days (what is happening in the next 45 days)? Does it cease to become a separation of powers issue in 45 days? Hastert may have been a willing accomplice here, who knows he may have even known about this beforehand. If I were Pelosi, I would absolutely press this issue to the Supreme Court - I would not be happy with the president's intervention. This looks a lot like political retaliation or snooping to try to eliminate political enemies, which is why Hastert got upset. Hastert has blithely ignored all encroachments of this president into the powers of the Congress and our civil liberties, but when it might be applied to him he takes issue. Surprise, surprise. Let's remember that he has had several sharp disagreements with this administration recently, including just last week when he apparently yelled at the Vice President over Goss' removal. The FBI leak (true or not) sent a mighty signal to Hastert that he might be next.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#14)
    by Talkleft Visitor on Fri May 26, 2006 at 05:15:52 AM EST
    Knowing how this criminal administration operates, and specifically that everything they do (including starting illegal wars) is politically driven, why, suddenly, after so many Republican Congressmen have been put under investigation for bribery and corruption, is a Democrat (and an African-American member of the CBC, and from Louisiana to top it all) the first ever, not to mention the only Congress person to have his or her office raided by the FBI? And then to have the papers seized in that raid suddenly sealed by the POTUS? Something doesn't smell right. This reeks of evasive action, a political faint, a neocon/rovian preemptive strike against Truth, Justice and the American people. And don't you just know Speedy Gonzales is in on it.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#15)
    by scribe on Fri May 26, 2006 at 08:21:52 AM EST
    This whole situation is an immense crock of bullsh*t, almost without equal. And it is clearly a deliberate constitutional provocation by The Unitary Decider. That said, I see a couple things emerging from this, the latest pile of crap flowing from the doors at 1600 PA: (1) Republican members and senators, how does it feel to realize that you've been being punked all along by the boy who would be king and Deadeye Dick? Every time he sent some hack down for nomination (and you intoned how "a President is entitled to have is nominees confirmed"), every time he issued a signing statement (I don't have to obey any laws I don't like, because they're not laws if I don't say so!), every time he did things outside of the appropriations (Hello, TIA!), every time he blatantly violated FISA, every time he trashed the "compromises" he negotiated with you, every time he had Rover twist your arms to get you to concede or lose funds, every time he pulled out - or glanced at - Deadeye's book-o-misdeeds (you know, the one he collected with such care when he chaired the VP selection committee and you thought he would use to ensure a scandal-free VP nominee), every last one of those times, you were being punked. And, it's only now, when the doors come crashing in under the feet of his FBI, that you realize you were facilitating The Unit's turning you into a chorus of eunuchs. You, Repug congresscritters, handed him the knife, and now have the temerity to bleat about it when he castrates you. Fools. (2) How much you want to bet that the Capitol hill cellphone service Abramoff wangled for his client has a Narus switch (or some other direct tap) built right in? Do you think that maybe, just maybe, The Unitary Decider is using the NSA to spy on you? And maybe, just maybe, he's listening to everything you say and using that to work you against yourself? Kind of uncomfortable now, isn't it? (3) At some point, this fight over documents and searches will come down to an oral argument before a judge in which you congresscritters will be reduced to telling that Judge: "You will have to rule in our favor, if you want to keep your job. Two of the three branches killing each other to preserve some of their rights, while the Unit stands back, watches, and continues to accrue power. Heckofa job, Denny, Arlen, Frister, et als.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#16)
    by squeaky on Fri May 26, 2006 at 08:50:56 AM EST
    This whole thing is very weird. A dem caught on tape and then money found in his freezer??? FBI raid, first in 200 years, Hastert is spitting blood about it, and then the chimp takes control of the evidence, all in the greater context of widespread repub scandals. Something stinks here. Grade b movie material. It will go to the Supremes during the first term that the dems have control of congress. Congress will lose. It is now OK for congress to be searched wiretapped etc. The executive branch coup is complete. How pissed is Hastert? Is he ready to impeach? We will see if this is a charade or not. Madsen may be right:
    [The raid] was not a warning to the current 109th Congress but a threatening broadside against the 110th Congress, which looks to have at least one house controlled by the Democrats. The unitary fascist Bush White House is sending a message to a future Democratic Congress -- "engage in investigations, hearings, subpoenas of Bush administration current and ex-officials, and impeachment notions, and this type of ransacking of congressional offices will be the rule and not the exception."

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#17)
    by Slado on Fri May 26, 2006 at 09:34:31 AM EST
    Squeady as always your conspiracy theories miss the mark by a long shot. Why do dems always assume a neo-conservative plot that reaches all levels of government? This isn't 24 (how awesome is 24?) This is a move by the white house to appear as the grown-up in this matter. Without partisan parsing this is the right move. Also I think they are protecting Hastert from making an ass of himself which he was doing by protecting Jefferson.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#18)
    by Bill Arnett on Fri May 26, 2006 at 10:01:31 AM EST
    This isn't that difficult to figure out: Raid a democrat's office to ignite a furor; then have Bush put a freeze on the info for 45-days; the case has no chance of being litigated before the elections, therefore, NO REPUBLICAN OFFICES CAN BE SEARCHED to prove quid pro quo in the Abramoff scandal. (That's why you start with a democrat not affiliated with the Abramoff scandal.) Alternatively, the courts could place such onerous restrictions on any future such searches that the DOJ can cite THAT as the "reason" they will not seek comparable search warrants for Republican Guard offenders, AND NO REPUBLICAN OFFICES WILL BE SEARCHED. That makes it a "win-win" situation for the most crooked administration and congress in the history of the United States. And another loss for the American people.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#19)
    by squeaky on Fri May 26, 2006 at 10:02:24 AM EST
    Right slado. Just another garden variety corruption case. Nothing unusual at all.

    Re: Bush Orders Jefferson Documents Sealed (none / 0) (#20)
    by Talkleft Visitor on Fri May 26, 2006 at 10:21:34 AM EST
    Slado, LOL - That would be great theory if they appeared to be adult. They don't. They appear to be up to something and I am not particularly conspiracy oriented. I have no idea what happened here, and I have no problem with a Congressman who was found to have $90k in alleged bribe money stashed in his freezer getting his office searched - that seems fair to me. The fact that Hastert is going so bonkers is indication to me that there is something else at work here, and as that may well be the case, Bush looks to me as if he has obscured that. If everything is on the up and up - get it out in the open. Don't hide it. Not even for 45 days.