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June 5, 2006

SCOTUS and the FBI raids

It's finals week so my procrastination has taken the form of blogging. Anyways, former OxBlogger Josh Chafetz has a provocative essay at TNR about the FBI raid of Congressman William Jefferson:

If there's one thing that can unite members of Congress across party lines, it's their privileges. Responding to the FBI's recent raid of Democrat William Jefferson's congressional offices, Republican Speaker Dennis Hastert and Minority Leader Nancy Pelosi issued a joint statement condemning this "violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years." They demanded the immediate return of all materials seized and a commitment to keep their contents secret. Last week, President Bush partially acceded to their demands, directing the Department of Justice to seal the materials for 45 days while Congress and the executive branch argue it out. Nary a House member has spoken out forcefully in support of the FBI's search.But the fact that the congressional arguments are self-serving doesn't mean that they're wrong. In fact, the Speech or Debate Clause of the Constitution should be interpreted to prohibit searches like these. To allow such searches undermines the independence that the clause is meant to secure for Congress. Yet the Constitution cuts both ways--it gives Congress rights against the other branches, but it also gives it the responsibility to police itself, a responsibility Congress has neglected in recent decades. Much of Congress's failure to police itself adequately can be attributed to the Supreme Court losing sight of this delicate balance in the twentieth century.{Emphasis added]
Rarely do you hear someone making the argument that the courts should be doing more but Chafetz makes it, and pretty convincingly.