Topic: Constitution, the Law, and the Courts

Toughman Contest

U.S. News has an interesting profile of David Addington, Vice-President Cheney’s chief of staff and top legal adviser—a key player in administration debates over torture, domestic detention, and NSA surveillance. One thing that stood out for me was this description of the social dynamic at work when administration lawyers crafted War on Terror policies:

Whether or not he became the de facto leader of the group, as some administration officials say, Addington’s involvement made for a formidable team. “You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power,” says a former Justice Department official. “If you suggested anything less, you were considered a wimp.”

For background on the legal theories that emerged from that environment, see here.

Congress’ Sudden Concern for Overly Aggressive Policing

While the leaders of Congress were wringing their hands over a corrupt colleague having his office raided by FBI agents in suits, a drug task force in Wisconsin needlessly terrorized two completely innocent people last night. From Dodgeville, Wisconsin:

Members of a drug task force burst into a Dodgeville apartment Monday night and arrested two people before officers realized that they were in the wrong apartment.

Richland-Iowa-Grant Drug Task Force members entered the apartment about 10:15 p.m. and arrested its two occupants in what police considered a “high-risk” drug bust, according to the Dodgeville Police Department. Minutes later, they realized that they were in the wrong place and released the occupants.

[…]

Task Force Director Lt. Scott Marquardt said the task force was reviewing what led to the accidental arrests. He said the task force was sorry for what happened to the innocent neighbors.

“We’re very disappointed,” Marquardt said. “We regret the stress and the inconvenience that we caused. That’s not how we do business.”

From research I’ve done for a forthcoming Cato paper, I’d estimate these types of “wrong door” raids are reported in the media 2-3 times per month in the U.S. (it’s likely that they happen and go unreported much more frequently). Most of the time, victims escape with no worse than a broken door and a fractured psyche. Many times, they end up injured. And once or twice a year, an innocent person ends up dead.

With its tireless support for the drug war, and its policy of making surplus military equipment from the Pentagon available to local police departments, Congress is responsible for an explosion of SWAT teams across the country, and a massive increase in the number of times these teams are deployed on such “no-knock” raids. Drug warrant service now comprises the overwhelming majority of SWAT team “call-outs” in America.

So before congressional leaders fret over the “unduly aggressive,” “intimidating” raid of a sitting member’s office, they ought to look into how their own policies have led to police kicking down the doors of dozens of innocent or nonviolent drug offenders in their homes each day in this country.

They could start by Googling “Alberta Spruill,” “Clayton Helriggle,” or “Alberto Sepulveda.”

Don’t Tread on My Legislative Privilege

Tongue implanted in cheek, David congratulates Congress for finally finding an illegal exercise of executive power to condemn: an FBI raid on Rep. Jefferson’s offices. However, congrats may be premature, because it’s not entirely clear whether the raid is illegal.

(Usual warning: Lengthy lawyer parsing follows. Proceed at own risk. Short version: there are some good arguments that the FBI raid is illegal, but the case law is far from clear on this point.)

The Speech and Debate Clause provides:

Senators and Representatives … shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their Attendance at the session of their respective Houses, an in going to and returning from same; and for any other Speech and Debate in either House, they shall not be questioned in any other Place.

Jefferson is under investigation for bribery. Congress itself has expressly made it a crime for members of Congress to accept bribes (18 U.S.C. s. 201). The Supreme Court has held (in United States v. Johnston, 383 U.S. 169 (1966)) that the Speech and Debate Clause does not absolutely immunize members of Congress from prosecution under a valid bribery statute (enacted, remember, by Congress).

To be sure, the Court held that some acts are “immune” from prosecutorial snooping even under a valid bribery statute—that is, they cannot constitute part of the evidence on which the prosecution relies. But, the Supreme Court has held this immunity applies only to the following: (1) “legislative acts”—those generally done in the process of enacting legislation” (United States v. Brewster, 408 U.S. 501, 514 (1971), which includes making speeches on the floor of a House of Congress or in committee, voting on the floor or in committee, contributing to reports entered into the legislative record; (2) other acts that are “integral” to deliberation connected to legislative acts. (Gravel v. United States, 408 U.S. 606, 625 (1972)).

That means a host of legislative business unrelated to enactment of specific legislation—from petitions to agencies on behalf of constituents, to ordinary constituent meetings, to speeches in the home district, at Washington galas, or what have you—are not privileged “legislative acts” and therefore can serve as a basis for prosecution. That also means preparation that goes into these sorts of activities also isn’t privileged. The upshot: many papers and effects contained in Jefferson’s office might be searchable by federal investigators pursuant to a valid warrant. (Caveat: I haven’t pursed the allegations against Jefferson).

Assuming they are searchable, that doesn’t settle the conditions on executive entry onto the physical grounds of Congress, on which these papers are located. The privilege appears to attach to acts, not places. Hence the grounds of Congress themselves aren’t privileged. And the Constitution doesn’t tell us the conditions attached to executive entry into the Houses of Congress, pursuant to a valid warrant.

I haven’t yet seen any recent cases on this point, although I confess I haven’t done much searching. In ordinary Fourth Amendment law, searches of homes, for example, are subject to different rules than searches of cars or searches of persons on the street. For example, police must knock and announce themselves prior to executing a valid search warrant for a domicile. It seems reasonable that some restrictions on entry should also apply when police are seaking evidence related to non-legislative acts on the grounds of (the “home” of) Congress.

That’s consistent with the cases on legislative privilege: Arguably, for example, Congress’s institutional control over the physical integrity of the grounds of Congress is essential to legislative deliberation. Surely, for example, unannounced raids or, say, the fear of unknown FBI bugs and wiretaps could chill legislative deliberation. These concerns suggest the legislative privilege requires an analogue to the knock-and-announce rule. For example, perhaps executive officers should notify House or Senate leadership and Capitol police of intent to execute a valid search warrant prior to entering Capitol grounds. Since separation of powers concerns come into play, there may be an argument that more should be required than would be required in an ordinary domicile search: perhaps, for example, congressional leadership may require executive officers to be accompanied by Capitol police, at least absent exigent circumstances.

I’m not sure whether it would require even more than this (for example, require Captiol police themselves to execute the search). Arguably, participation of Capitol police may be essential to the institutional integrity of Congress and therefore to legislative deliberation, but exclusive congressional control over all aspects of investigation on Capitol grounds isn’t. And, after all, the Framers—by exempting certain crimes from the privilege of arrest—clearly intended to balance institutional integrity of Congress with the larger principle that no branch is above the law and its offices.

Congress Rouses Itself

At last Republican congressional leaders have found an abuse of executive power that offends them:

An unusual FBI raid of a Democratic congressman’s office over the weekend prompted complaints yesterday from leaders in both parties, who said the tactic was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government….

Republican leaders, who previously sought to focus attention on the Jefferson case as a counterpoint to their party’s own ethical scandals, said they are disturbed by the raid. Senate Majority Leader Bill Frist (R-Tenn.) said that he is “very concerned” about the incident and that Senate and House counsels will review it.

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. “The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case,” he said in a lengthy statement released last night.

“Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress,” he said….

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line “on the edge of a constitutional confrontation,” called the Saturday night raid “the most blatant violation of the Constitutional Separation of Powers in my lifetime.”

If they are finally awake to the executive branch’s indifference to constitutional restrictions, they could find some more opportunities for oversight and correction here and here.

Scapegoating Milberg Weiss

Saul Levmore is asking the right questions about the Milberg Weiss prosecution here.  “Milberg, who?,” you ask. 

(Warning:  boring lawyer-talk follows.) 

Milberg is the titanic plaintiffs class action firm that was just indicted for paying professional plaintiffs to serve as figureheads for the firm’s class action suits.  Those who love to hate class actions tend to love this prosecution.  But as Levmore asks, what, exactly, is so bad about lawyers paying professional plaintiffs to act as figureheads, anyway?

Hundreds of lawyers hate the firm and they are quick to say that plaintiffs are paid to lie, to agree to settlements that are not in the interest of other class members, to lie about having been consulted about conflict of interest questions, and so forth.  Some of these possibilities seem implausible, or at least somewhat puzzling, in a world in which named plaintiffs are rarely consulted at all, and in which judges must approve settlements (for better or worse) but are hardly accused of paying too much attention to the wishes of the named, nominal plaintiffs. 

Let’s not kid ourselves: class actions are bounty-hunting enforcement actions designed to deter wrongdoing, rather than compensate victims.  Named plaintiffs play a negligible role in these lawsuits, because the suits aren’t brought for their parochial benefit.  The suits are brought to punish the target, not to remedy individual injuries.  The “named plaintiff” is a virtual legal fiction–a stubby appendage of an older system of corrective justice and individual rights which our legal system has, for all intents and purposes, thrown over the side.

Now, I happen to like that old, lost, fundamentally liberal view of the law, in which state coercion is limited to aiding individuals, rather than promoting collective (i.e. state) interests.  But the incentive system set up under our current class action system simply isn’t designed to promote attention to individual remedial interests.  And prosecuting Milberg Weiss for paying kickbacks to figurehead plaintiffs isn’t going to change that fact.  

Radical, systemic solutions are necessary. One is to force lawyers to recruit not just named plaintiffs, but class members, by requiring absent class members to affirmatively “opt in” to the class litigation–thereby forcing lawyers to sell their representation to entire class.  By making class actions fully contractual, lawyers may act less as self-interested regulatory bounty-hunters and more like the advocates-for-hire of old.  See this piece for further discussion. 

But this is a solution that our political system can’t stomach.  And so we’re left, instead, with the Milberg prosecution:  a symbolic, ineffectual fit of pique.

The Greatest Deliberative Body?

Columnist Robyn Blumner has nice things to say about our new study, Power Surge, and she takes Congress to task for doing nothing: 

The Republican leadership in Congress is standing by while its house is being pillaged. The power to write federal laws is Congress’ alone. The president’s duty, as expressly stated in the Constitution, is to faithfully execute the laws he signs, not to add asterisks on parts he intends to ignore.

Senate Majority Leader Bill Frist and House Speaker Dennis Hastert are joining in their own emasculation when they utter not a peep during this bloodless coup. I don’t know why Republicans have a reputation for strength. When blindly supporting a president from your own party takes precedence over guarding Congress’ historic role, “Republican leadership” becomes an oxymoron.

It is not just liberals who have recognized the danger. I challenge anyone to read an important new report by the libertarian Cato Institute (www.cato.org) and not be chilled. “Power Surge: The Constitutional Record of George W. Bush” is an unblinking 28-page analysis of our slow devolution into autocracy. Its message can be summed up with this quote: “Under (the president’s) sweeping theory of executive power, the liberty of every American rests on nothing more than the grace of the White House.”

A meek and pliant Congress is allowing this new paradigm to take root.

One can almost hear Speaker Hastert trying to defend himself: ”Look, I said something about executive branch overreaching just this morning.  Ya know, I’ve signed off on some extraordinary police powers over the years, but there’s gotta be a limit to those powers.  The Constitution is clear: The right of members of Congress to be secure in their offices and homes shall not be violated!”

Requiem for 5-4 Supreme Court Decisions

Chief Justice Roberts gave an address at Georgetown in which he lauds the virtues of deciding cases, where possible, narrowly and unanimously:

 ”If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” Roberts said. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”

Its not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right.  Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness.  The more amorphous and open-ended the statute–the more the statute defers tough questions–the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too:  Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

Indeed, as I discuss at the end of this online debate, this may be the lesson of one of Roberts’ earliest opinions (in Rumsfeld v. FAIR).  There, the Court was asked to decide whether Congress violated law schools’ free speech rights by threatening to withdraw federal funding unless the schools sponsored JAG recruiters on campus.  The Court unanimously rejected the law schools’ First Amendment claims.  But in the course of doing so, it reached a question it didn’t have to reach:  the scope of deference owed to Congress when it regulates “military affairs.”  Worse, the Court’s cursory discussion of military affairs deference is exceedingly unclear and could be read to mean that judicial enforcement of the Bill of Rights is at a vanishingly low ebb when Congress raises and supports armies.  

As even the National Review admits, this aside is troubling and deserves clarification.  But it may also be a by-product of Roberts’ drive for consensus:  Some justices may have joined the Court’s ruling on the First Amendment only if there was some hedge that allowed them to distinguish the First Amendment ruling in a later, different case.  Adding in a bit about military deference may have been the hedge that brought those justices on board, allowing them to rule differently in a case that didn’t involve national security.  But other justices may have been wary about the scope of deference in this area.  Therefore it was necessary to discuss military deference in a vague way in order to belay these fears.  The result:  an opinion that inadvertently muddies the scope of civil liberties in the shadow of military-related legislation, inviting envelope pushing by Congress and the President.

The lesson:  Sometimes being narrow requires hedging.  And sometimes consensus requires wishy-washiness.  Hedging and wishy-washiness in turn make the law less clear.  That may give government officials more discretion to boss us around, while leaving the rest of us in the dark about the scope of our rights.