Dispatches from the Creation Wars

Amar on Congressional Searches

Akhil Amar, one of the very best constitutional scholars in the nation, has an essay at Slate about the controversy over the FBI’s search of the office of a congressman in a criminal investigation. He says pretty much exactly what I’ve been saying since the day it happened, that the only problem with the search was procedural, not constitutional. The speech and debate clause, contrary to the assertions of Hastert and Pelosi, do not protect a legislator against arrest or against having their office searched as part of a felony investigation.

The procedural mistake the FBI made was in not having an impartial third party there to screen the material. There is such thing as legislative privilege, just as there is attorney-client privilege. When a search warrant is executed on an attorney’s office, law enforcement must have someone present who looks at any written material before hand to decide whether it would violate that privilege. If so, then the matter has to be adjudicated. If not, he hands it over to the police. The FBI should have done the same thing here, had someone from the Sgt-At-Arms office of the legislature to screen the material in that manner. But there is absolutely nothing in the Constitution which prevents a search or an arrest of a sitting congressman.


  1. #1 Ginger Yellow
    May 29, 2006

    So what exactly does this privilege entail? What’s the distinguishing characteristic of a document covered by legislative privilege? Given that Jefferson is accused of taking bribes to influence legislation, presumably the investigators would be interested in anything that shows how he came to a position on legislation or how any amendments he wrote came about. Would these be covered by the privilege? Finally: even attorney-client privilege has an exception for when the communication is for the purpose of committing a crime or fraud. Why wouldn’t that be applicable here?

  2. #2 Treban
    May 29, 2006

    I think the point was that the FBI didn’t have the mechanism in place to avoid the appearance of wrong. The point of having the Sgt-at-arms preasant would not be to keep them from looking at material not relevant to the investigation that may be covered under privaledge. If the third party didn’t let them look at something they thought they should be able too they have the oppertunity to go in front of a judge.

    If it were, for example, my therepists office being raided, I would be right angry if the FBI were looking everything there without care for relevenacy or the privacy of the patients who’s records were being searched. The exceptions of privaledge do not apply when we are talking about procedure for a search – that is relevant when it comes to testifying under oath.

    Just because it involves a crime that makes us quite angry doesn’t mean that legal procedures should be ignored. In fact that makes it more important. Criminals get off quite regularly because the cops do not follow procedure.

  3. #3 Ginger Yellow
    May 29, 2006

    Sure, I’m absolutely in favour of proper procedure and due process here. My questions were more aimed along the lines of “how would this impartial person decide between privileged material and unprivileged material”? I’m genuinely curious. It seems to me like under any common sense definition of legislative privilege, all the documents the FBI would want would come under that privilege (ignoring for the moment any crime/fraud exception). I’m well aware that the law and common sense rarely coincide, however.

  4. #4 Ed Brayton
    May 29, 2006


    Ultimately, a judge has to decide what is privileged and what is not. I don’t know how detailed the parameters of that privilege are, as the situation has very rarely come up in American history. My point, however, is that Hastert and the rest of the up-in-arms congressional leaders are wrong to claim some sort of blanket immunity for legislators during a session.

  5. #5 Jody
    May 29, 2006

    As has been pointed out by many others, I wish the Congressional leadership had made as big a stink when the actions of the Executive were targeted at the general public (NSA wiretaps, etc) in violation of both the letter and spirit of the Constitution, as they’ve done since it’s been targeted at them.

    It’s so frustrating to see how little people care about our rights anymore.

New comments have been disabled.