Thursday, May 25, 2006

Constitutional Interpretation and the raid on Rep. Jefferson's papers

[See - previous - posts.] [Boehner states this will likely end up at the Supreme Court.] [Post discusses context of FBI corruption probes.]

In Gravel, a Rep who opposed the Vietnam war entered the Pentagon Papers into a committe report, for which his aide was subpoenaed. Just like yesterday's House demand for Jefferson's papers back, in March, 1972 the Senate adopted Senate Resolution 280, submitting an amicus curiae brief to the Supreme Court demanding the executive back off. The Court, however, held that his aide had the same protection as Rep. Gravel; but Gravel himself had little protection. While the Rep couldn't be questioned for anything actually said in a hearing or on the floor, he could be questioned about everything except that, including how he got the Papers, who he got them from, what he did with them, deliberations leading up to the speech, staff discussions, and so forth.

In Brewster, a Rep was charged with soliciting and accepted a bribe from a mail-order company in exchange for a beneficial vote on postal rates. The Court held that the only action of Brewster's that was actually protected was his physical vote-casting. If you can prove bribery without relying on Brewster's vote (whether the two are intertwined or not--see Johnson), you can nab him.

The key holding in Gravel and Brewster is that the Speech or Debate Clause is held to protect "legislative activity," and legislative activity is held to only be actually speaking on the floor or voting there. Chief Justice Parsons in his Gravel dissent summarized the previous judicial holding of Coffin v. Coffin: "legislative activity" is
everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.
So the majority took a formalist approach (looking at the terms of the Speech or Debate Clause in isolation, and then deciding if this is speech or debate), and the dissent took a functionalist approach (the historical and structural purpose of the Speech or Debate Clause is to protect legislators from harrassment).

Another example of these two approaches is Commerce Clause theory: a formalist would first try to determine what commerce is; a functionalist would ask what the Clause's purpose is. In this example you can get either result with either method: a functionalist trying to limit the CC would say the historical purpose was to keep the states from erecting trade barriers; a formalist trying to limit the CC would say commerce is trading merchandise; a functionalist trying to expand the CC would say the purpose is an Amar-like "spillover" test; a formalist would say that commerce is "anything." Similarly for the term limits cases, and campaign finance jurisprudence.

In the same way, here I think you can use functionalism and formalism to get either a pro- or anti-Jefferson result. But I think that functionalism trends in an anti-Brewster (and so pro-Jefferson) direction, while formalism is neutral. Clearly the functionalists have the better argument that a broad legislative protection is more appropriate than a mere on-the-floor privilege. And historically the formalists have a case that speech and debate included more than just actions on the floor. (See White's dissent in Brewster.)

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Maybe, though, you need to look at more than one text to discover the underlying structural considerations and avoid a mess. Consider the following doctrinal goulash:
This Court has generally been quite sparing in its recognition of claims to absolute official immunity. One species of such legal protection is beyond challenge: the legislative immunity created by the Speech or Debate Clause, U.S. Const., Art. I, ยง 6, cl. 1. Even here, however, the Court has been careful not to extend the scope of the protection further than its purposes require. See, e. g., Gravel v. United States, 408 U.S. 606, 622-627 (1972); see also Hutchinson v. Proxmire, 443 U.S. 111, 123-133 (1979); Doe v. McMillan, 412 U.S. 306 (1973); United States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 [**543] (1966); Kilbourn v. Thompson, 103 U.S. 168 (1881). Furthermore, on facts analogous to those in the case before us, the Court indicated that a United States Congressman would not be entitled to absolute immunity, in a sex-discrimination suit filed by a personal aide whom he had fired, unless such immunity was afforded by the Speech or Debate Clause. Davis v. Passman, 442 U.S. 228, 246 (1979); see also id., at 246, n. 25 (reserving question of qualified immunity).
This is from Forrester v. White, 484 U.S. 219 (1988). Against this vapidity ("we have been careful, blah blah"), one might try to set up an Amar-like intratextualism, finding balancing texts in the constitution that give some indication of an overarching structure. Here, it's pretty simple: juxtapose the Expulsion Clause with the Speech or Debate Clause, and it would seem that the constitution has already made a choice in these matters. The responsibility for disciplining congressional members for bribery is on congress itself, through their expulsion power; this is broadly preserved away from the executive by their priviliege of speech and debate.

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If you are against independent counsels, where quasi-executive canines hunt the president, should you be against the executive's power to question congressmen's actions? If you're afraid of an investigation having no natural internal limits (the president firing his attorney general, or congress ending hearings), and you're afraid of cross-branch investigations (special counsels under the control of another branch), shouldn't you then want to draw the Speech or Debate Clause protection broadly, even broadly enough to encompass possible crimes? Why should the possibility of an uninvestigatable crime matter more in construing the Speech or Debate Clause than it does when we refuse to tolerate leashless independent counsels?

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Interestingly, if we return from Brewster (1973) to Johnson (1966), it's likely that a fair bit of Buckley(1976)-esque campaign finance legislation goes out the window. The appearance of impropriety will be hard to punish if being improperly boondoggly is the main job of a legislator. (This is explicitly discussed by White in his Brewster dissent.) If you're like me, you'll think the loss of Buckley is a mixed bag, but more blessing than curse.

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Why do we believe that there is an executive privilege for secrecy, which is not even in the constitution, when we narrowly construe the speech and debate privilege, which is?

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What about the argument that congress didn't exempt congress from bribery laws, and so the executive can attack? It doesn't matter what congress does: congress doesn't get to choose. This is a constitutional provision. Congress no more gets to set what the privileges attaching to the Speech or Debate Clause are than it gets to determine what the Qualifications Clause amounts to.
Congressional resolutions were within protection of speech or debate clause; action seeking injunctive and declaratory relief against House of Representatives resolution excluding Congressman from membership and declaring his seat vacant could be maintained against employees of House of Representatives, but had to be dismissed against those defendants who were Congressmen. Powell v McCormack (1969) 395 US 486, 23 L Ed 2d 491, 89 S Ct 1944.

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