The Court’s denial of review in U.S. v. Rayburn House Office Building Room 2113 (07-8160) is a major blow. The Court tends to take cases involving inter-branch disputes, particularly after the government has lost in a privilege claim — as here, with the Speech and Debate Clause. Previously, a three-judge panel ruled that papers seized by the FBI “exposed legislative material to the Executive and accordingly violated” the speech-or-debate clause. The panel ruled that the FBI is barred from “a location where legislative materials [are] inevitably to be found,” unless the member consents.Now, Justice is worried that the ruling will undermine its other corruption cases like those in the Abramoff scandal.
It is a self-inflicted wound. I testified at the congressional hearing after the Jefferson raid and explained why it was both facially unconstitutional and unnecessary. For my prior testimony on the Jefferson raid, click here.
Now, in a lasting gift from the Alberto Gonzales administration at Justice, the Justice Department is continuing to spend huge amounts of money and time to repair the damage done. If the Justice Department had simply followed past procedures, it could have secured the material and moved swiftly to trial. Instead, trying to prove that they can again act without restraint or limitations, they took the most thuggish possible approach and undermined a strong case for prosecution. For a prior column, click here.
The appeal to the Supreme Court may have been as moronic as the original raid. If they had succeeded, it was more likely that they would only expand on their losses on the appellate level. Indeed, conservatives may have helped protect the White House from itself. There remains a distinct need for adult supervision at the Bush Justice Department on such issues. Past presidents have avoided such fights and worked to avoid any court fight on such questions. This is part of a broader pattern of efforts to expand presidential authority vis-a-vis the other branches. From the detainee cases to the congressional subpoena cases, the White House has fought to create unchecked authority. Most such efforts have resulted in failures in court and, ironically, the creation of new precedent limiting presidential authority. Yet, like a bad gambler at Vegas, the President continues to make these plays.
In the case of the Jefferson raid, the White House triggered a constitutional crisis despite the fact that it could not cite any lack of cooperation by Congress. The House had proven extremely cooperative in the past investigation and was expected to continue to be cooperative under its Republican leadership. Even the Democrats had abandoned Jefferson.
The raid changed the entire picture and worked entirely to the advantage of Jefferson. Indeed, if the President were any more helpful to Jefferson, he would have to be placed under retainer by the defense team. The raid transformed Jefferson from a villain into a victim. It gave the defense an avenue for challenges and has cost copious amounts of money and time. It may constitute one of the most unmitigated blunders of all time for the Justice Department.
For the latest on the story, click here.