Wednesday, May 24, 2006

Jefferson papers: no recent Supreme Court ruling: lower courts may control?

And one more thing about the posts below: Brewster is regarded with a bit of suspicion, and was in the early 1970's; and so recent circuit cases may need to be examined to determine the state of the art here. Also, although Rehnquist signed onto Brewster, the case used an unfortunate severely-bastardized version of originalism in its discussion of the Speech or Debate Clause that even Renny can't have been happy with. The current conservative court makes it especially likely this case is on thin ice.

Of relevance may be
  • Minpeco (1988) 269 U.S. App. D.C. 238 (upholding Congressional Committee hearing privacy),
  • Paisley v CIA (1983) 229 US App DC 372, 712 F2d 686,
  • McSurely v McClellan (1985) 243 US App DC 270, 753 F.2d 88 (unworthy purpose of legislator does not revoke privilege),
  • United States v Kolter (1995) 315 US App DC 166, 71 F3d 425 (privilege cannot be destroyed just by forcing congressman to stand trial),
  • Brown & Williamson Tobacco Corp. v Williams (1995) 314 US App DC 85, 62 F3d 408 (congressional investigators can't be subpoenaed),
  • United States v Helstoski (1980, CA3 NJ) 635 F2d 200 (if criminal prosecution based on legislative acts, indictment must be dropped),
  • United States v Swindall (1992, CA11 Ga) 971 F2d 1531 (similar).
Note that most of these are U.S. Court of Appeals for the District of Columbia Circuit, presumably because most cases are first brought there; this is considered a particularly august circuit for whatever reason, so it's possible that its decisions carry an extra bit of weight.

It might not be too hard to get back to pre-Brewster (1973) law: just return to Johnson (1966). This doesn't help crooked Mr. Jefferson right now--although recall that former IL congressman Dan Rostenkowski got all the way to the DC Circuit in United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995)--but it might be relevant. Anyway, should the executive have followed Brewster, with its minimal separation-of-powers protections, or had its own, higher standard of constitutionality? A certain yls student was mercilessly savaged in a certain class by a certain short-tempered professor for something on this point that I can't recall...

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