Sheridan: Con-Law

JON CARROLL

Imagine.

"A corrupt Louisiana politician -- what are the odds?"

Ask Jon Carroll, columnist for the San Francisco Examiner, who practices more Constitutional Law than most lawyers.  There's more than one way to practice, mind you.  The column is below.

Here he takes on our elected lapdogs, the Congress of Dick Cheney and George W. Bush.

Congress, you're doing "a heckuva job!" (GWB)

"Basicly, we're screwed."

SEPARATION OF POWERS

Is the Separation of Powers doctrine just a tool, like the ones used in First Amendment law, such as vagueness and overbreadth, to declare unconstitutional some government act?

Or does the doctrine describe our constitutional geography, with each branch occupying a neighboring island while the states, under the federalism doctrine, are located waay over there.

Perhaps the answer is that the Separation of Powers doctrine is a little of both.

The NYT editorial writers are beating on Congress for not protecting the Constitution when the people's rights are usurped, snoozing in fact, but reacting in high dudgeon indeed when the Executive Branch steps on the toes of the Legislature. 

Executive Branch cops, callled the FBI, entered Congress (the Rayburn office building) with a search warrant to search the office of Congressman William Jefferson, a Democrat of New Oleans, Louisiana.  $90,000 in cold cash, bribe money, allegedly, had been found in his home freezer.  Congress resisted ("stonewalled") a subpena.  So the G-men invaded the precincts of the Legislature.  We don't know, exactly, just how far those precincts extend, actually, but the congressional leadership seems to think an office in the Rayburn Building across from the Capitol Building where the two houses of congress sit, is close enough to get upset about when invaded by other branches.  No word of protest about the Judicial Branch that issued the search warrant permitting Executive officers to search Legislative offices, however.

Because both Congress and the Department of Justice (Executive Department, of course) are at loggerheads over this surprising confrontation, the President has ordered Justice to seal the seized material (computer disk, office files and records) and turn it over to the Solicitor-General's (Executive Department) Office for safe-keeping while the matter is ironed out without provoking a constitutional crisis, or a greater one, at any rate.

It seems odd to think that a Congressman could hide a body in his office and the police could not use lawful process to enter based on a Separation of Powers objection.  "Sorry, you can't come in, Separation of Powers!"  The body is then spirited away, thwarting the investigation.

But we do give congress members certain immunities under Article I, Sec. 6, the Speech and Debate clause, which covers more than just literal speech and debate.  See Prof. Corwin's "The American Constitution"  (1976).  The cases seem to be scattered all over the legal lot, and a cursory review failed to note a case that seemed to this reader to be in point, which means little since all this means is that I may have missed the point.  Appellate judges are in the business of making previously unsuspected cases seem in point.  Okay, if they say so, but they could've fooled me.

Had I been directing the movie, I'd've had Dirty Harry, G-Man, kick in the door, for greater dramatic effect.

Attorney-General Alberto Gonzales was set to quit over the principle of the thing, according to this report. This is a guy who thinks it's okay for the  U.S. to torture prisoners of the Global War on Terrorism, instead of treating them like POWs according to the Geneva Conventions.  The thought of him resigning on a matter of principle is truly mind-boggling.  It presupposes that he has principles worth resigning over, a revelation indeed. 

See below:

SEPARATION OF POWERS: FBI SEARCHES CONGRESS

The Bush Administration is annoying more than just Democrats these days.  The top Republican in the House is Speaker Dennis Hastert and even he's upset over the FBI searching the office of one of the House members.

It's not like the FBI didn't have good cause to turn the presumed-innocent Congressman upside down, considering that an undercover agent alleged bribed the man with $100,000 cash, $90,000 of which is said to have turned up in a search of his home freezer, giving new meaning to the term "cold cash."  And cold case.

What Congress is ticked about is the search of the Congressman's office in one of the House office buildings in Washington.   That, it seem, is a search of Congress, not just the man's home, even with a search warrant, which had been obtained in advance.  Don't let anyone tell you that search warrants are never obtained afterward and back-dated however, after the suspect's door was surreptitiously opened and the coppers checked the place out to see it if was worth the trouble.

In the old days a "San Francisco search warrant" was the sole of the officer's boot, but I didn't tell you that.

The problem with the search of the Congressman's office is that the Congressman is a member of the Legislative Branch pursuant to Article I of the Constitution while FBI works for the the Executive Branch per Article II.  Guess who issued the search warrant?  The Judicial Branch, Article III.

According to the Christian Science Monitor article, below, the protocol is for the Justice Department (Executive, not part of the Judiciary) to deliver its subpoenas to the Legislative Counsel's office for assistance (or objection) in executing.  Perhaps the Justice Department didn't trust this Congressional Office to cooperate in keeping secret the impending search of the congressman's office.  Had there been incriminating evidence there, it might have been destroyed.

So the G-Men and women busted in and turned the place over.

And now Congress seems to be making a bigger stink over the conduct of the Executive Branch for throwing its weight around than it is over decrying Congressman Cold Cash.  Putting the cop on trial, as it were.

Congressman Cold Cash, however, in the grand legal tradition, maintains his innocence and asks us to wait until he has his day in court and can tell his side of the story.  I can hardly wait.  Shakespeare would have difficulty portraying 90 grand in the freezer as being as pure as the driven snow.

I can hardly wait.

And as for those crooks in Washington, it's a wonder the FBI hasn't kicked in all their doors, not that I'm disappointed in Congress for trying to make a quick buck when it could be standing up to a president who acts as if the Constitution were so much chopped liver.  Kicking in doors of Congressmen suspected (News!) of trading influence for cash doesn't bother me nearly as much as a body of limp dishrags who let the president get away with anything he wants so long as the president is careful to label it as being "in the national security, which I, as your commander-in-chief, am responsible for protecting."

Bushwaa.

He's not my commander-in-chief, and he's not yours, unless you happen to be a service man or woman general in the armed services of the United States.  The purpose of that clause in the Constitution is to insure civilian control over the military, something even the military is taught to agree with.

The issue came up when that disgrace for a presidential candidate Al Gore referred to Bush, the man who ate his lunch in 2000, after 9-11, I believe, as "my commander-in-chief."  That launched a round of analysis of what the term means. 

When it comes to presidents, you are the commander in chief, if you are a voter, and you don't want to forget it.  This is what "popular sovereignty" means.  It's the basic theory of our constitution.  As opposed to King George III's sovereignty.  You remember the late unpleasantness, the American Revolution?  Where we supplanted the monarchy with our tripartite form of government which divides power into three branches instead of under one crown?  Which is where the notion of separation of powers comes from?  And why Congress, even the Republican members, especially the conservative Republican members, are ticked at George W for sending in his gendarmes to search their offices, crooked though they may be. 

George W is beginning to resemble too closely George III.  We're going to have to rein him in, perhaps. 

Pretty soon he's going to be hiring Mexican labor to build a wall around us to keep out the Mexicans.  It'll be the Alamo all over again, we don't watch out.  But that's just a rumor, of course, so I won't go into it.