William Jefferson Is a Crook, But…

… the Supreme Court has made the right call by refusing to hear the Justice Department’s appeal of a lower court ruling that held that the FBI acted unconstitutionally by raiding Congressman Jefferson’s office. It’s the best decision the Court could have made, in fact, since accepting the case would have involved giving an authoritative ruling on the latitude of the “Speech or Debate” clause of the Constitution, which says that Senators and Congressmen “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The letter of the Constitution says nothing about the sanctity of congressional offices. So is Jefferson really protected by this clause? Probably not, but “Parliamentary privilege” is older than the Constitution, and common law has generally taken a wide view of its protections. In this case, literalist interpretation of the Constitution may be somewhat at odds with an originalist interpretation of the Constitution, depending on what the Framers intended. Did they intend for the “Speech or Debate” clause to anchor the wider customary protections of Parliamentary privilege in the Constitution? There’s nothing in the Constitution that denies broad Parliamentary privilege, though there’s nothing that affirms it beyond the narrow wording of the “Speech or Debate” clause.

My layman’s view is that the Constitution does not shield Jefferson’s office from search, but the common law  protections should remain in force. I don’t know whether the Supreme Court could even make such a ruling. What they have done is the safest course: broad Parliamentary privilege is sustained but not given a definitive constitutional review by the high court.

Without Parliamentary privilege, the legislative branch is at the mercy of the executive, and that’s much worse than any amount of congressional corruption.

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One thought on “William Jefferson Is a Crook, But…

  1. Matthew April 3, 2008 / 7:26 pm

    It was nice to see that the Republican congressmen at the time rally around Rep. Jefferson. It was a rare instance of the Legislative branch exercising its rights.

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