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27–794 PDF







MAY 30, 2006

Serial No. 109–122

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

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F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California

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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel


MAY 30, 2006

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    The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Committee on the Judiciary

    The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary

    The Honorable Louie Gohmert, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Committee on the Judiciary

    The Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Committee on the Judiciary

    The Honorable Chris Van Hollen, a Representative in Congress from the State of Maryland, and Member, Committee on the Judiciary


Mr. Charles Tiefer, Professor, University of Baltimore Law School
Oral Testimony
Prepared Statement

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The Honorable Robert S. Walker, Chairman, Wexler & Walker, and former Member of Congress from the State of Pennsylvania
Oral Testimony
Prepared Statement

Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School
Oral Testimony
Prepared Statement

Mr. Bruce Fein, Principal, The Lichfield Group, Inc.
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Response to Post-Hearing questions from the Honorable Robert S. Walker, Chairman, Wexler & Walker, and former Member of Congress from the State of Pennsylvania

    Response to Post-Hearing questions from Jonathan Turley, Professor, George Washington University Law School

    Response to Post-Hearing questions from Bruce Fein, Principal, Lichfield Group
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    ''Memorandum in Support of Motion for Return of Property''

    ''Motion for Return of Property and Emergency Motion for Interim Relief''


TUESDAY, MAY 30, 2006

House of Representatives,
Committee on the Judiciary,
Washington, DC.

    The Committee met, pursuant to call, at 9:30 a.m., in Room 2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.

    Chairman SENSENBRENNER. The Committee will be in order. A quorum for the purpose of taking testimony is present.

    On May 20 and 21, for the first time in 219 years, the Department of Justice entered a Capitol Hill office and removed documents and materials without the involvement of a single legal representative of Congress. Exactly what was taken is known only to the Department of Justice.

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    Certainly, any Member of Congress who has committed a crime insured be prosecuted for his criminal acts, but the issues involved in this unprecedented action by the executive branch transcend any particular Member. A constitutional question is raised when communications between Members of Congress and their constituents, documents having nothing whatsoever to do with any crime, are seized by the executive branch without constitutional authority.

    This seizure occurred without so much as lawyers or representatives of Congress being allowed to simply observe the search and how it was conducted. Neither was anyone representing the institutional interests of Congress allowed to make a case before a judge, raising these important separation of powers issues.

    Our Founding Fathers, Thomas Jefferson and James Madison, made clear that a general legislative constitutional safeguard designed to prevent encroachments by the executive branch upon the legislative branch is embodied in article I, section 6, clause 1 of the Constitution, which provides that Senators and Representatives shall not be questioned for any speech or debate in either House.

    The purpose of the speech or debate clause was aptly summarized by the Supreme Court in Eastland v. U.S. Servicemen's Fund, in which it stated ''the central role of the clause is to prevent intimidation of legislators by the executive, and accountability before a possibly hostile judiciary.''

    The Supreme Court has also stated in United States v. Johnson that in the American governmental structure, the speech or debate clause serves the function of reinforcing the separation of powers so deliberately established by the Founders.
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    In Helstoski v. Meanor, the Court said the clause is vitally important to our system of government.

    In the case of United States v. Brewster, the Court emphasized that the speech or debate clause does not confer immunity from prosecution for criminal activities upon Members of Congress, because such activities are not legitimate legislative acts.

    However, while bribery and other crimes clearly fall outside the scope of the constitutional legislative safeguard, the prior question is what procedures should be adopted to determine which Member communications are protected by the speech or debate clause and which are not. The Supreme Court has made it clear in the Brewster case that it is beyond doubt that the speech or debate clause protects against inquiry into acts that occur in the regular course of the legislative process.

    In the case of Representative William J. Jefferson, the search warrant that the Justice Department obtained from a Federal judge allowed for his congressional office to largely be combed over with materials, including computer hard drives, placed in the sole possession is of the Department of Justice.

    The materials taken very likely include communications created in the course of legitimate legislative process that have nothing to do whatsoever with the criminal inquiry into Representative Jefferson's activities. The Justice Department had the ability to seek enforcement of their Federal grand jury subpoena in Federal court to obtain the same documents seized from Congressman Jefferson's Capitol Hill office, but chose not to do so. The Justice Department has historically used grand jury subpoenas to obtain documents relative to a criminal investigation of a Congressman or Senator.
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    On May 25, the President ordered the seized documents sealed for a period of 45 days so that Congress and the Department of Justice could work out a constitutionally sound solution that will allow all materials relevant to any crime to be obtained while protecting innocent legislative materials legitimately protected by the speech or debate clause. In doing so, the President has allowed for precisely the sort of reasoned deliberation on important issues of separation of powers that I expect this hearing to accord with today.

    I look forward to hearing from all our witnesses, who will address the propriety of the Justice Department's conduct in light of the Constitution, the separation of powers and the co-equal branch of Congress.

    I now recognize the gentleman from Michigan, Mr. Conyers, for his opening statement.

    Mr. CONYERS. Thank you, Mr. Chairman, and Members of the Committee. This is a historic moment in the House of Representatives. I have been on the Judiciary Committee for 4 decades now, and never has anything of this nature come to our attention and require that we try to bring the three branches of Government into more harmony.

    Now, there is no doubt that Members of Congress are not above the law. The Department of Integrity Unit at the Department of Justice is a progressive professional unit. They have convicted one Member of Congress this year already, and have several pending investigations. They have the full power of not only the Federal Bureau of Investigation, but the grand jury behind them, and they can be quite persuasive and resourceful when they are interested in obtaining evidence or witnesses in corruption investigations.
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    But the procedures employed on the Saturday night in question were sloppy at best, but reckless at worst. What we have brought down on our heads is 219 years on which, in which, in this history of the United States, have been able to avoid the spectacle of the Federal Bureau of Investigation swooping down into the Capitol in direct confrontation with another duly-empowered police force.

    Ten days after the fact, we have yet to be told why the pending subpoena against a sitting Member could not have been enforced consistent with the law. We have never been told why this search had to be done in the middle of the night at a time when the constitutional Representatives of this body were unreachable. We have never learned why the Member in Committee was not permitted to have his attorneys present while his offices were searched for some 18 hours.

    The so-called safeguards utilized by the Department, creating their own team to review claims of relevance and the speech request debate clause protections, provide us little constitutional comfort.

    Like the rest of the search procedures, they were developed unilaterally by the Department of Justice with little thought given to the constitutional prerogatives at stake. I think this is an important and timely hearing, and the witnesses called here are very important. I am looking forward to hearing from them.

    But I think we should keep in mind the threats of the Attorney General of the United States as has been reported, to resign over this matter. Well, I think that should not go unrecognized, because of the torture memorandum put out and developed while Mr. Gonzales was the counsel to the President, and later ratified as he was the Attorney General, there was a memorandum that stated that the President could order officials to commit crimes and that the executive branch could violate Federal laws when the President viewed it to be in the national interest.
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    We have the question of warrantless, domestic wiretaps, which did not excite him one bit, and which the President admitted that he ordered surveillance under the national—the NSA domestic surveillance program, despite the views of many experts that the operations violate Federal law and constitutes a Federal crime when they are not done under the FISA restrictions.

    The Data Mining Corporation recently revealed 10 millions of names and phone numbers in a massive data bank that did not incline him to threaten to resign.

    I think, Mr. Attorney General, you are barking up the wrong tree, and this is an issue that hopefully Members of the Republican and Democratic parties in the Congress can bring to an end. I commend the Chairman of this Committee for calling these hearings today.

    Chairman SENSENBRENNER. Thank you, Mr. Conyers.

    The gentleman from Texas, Mr. Gohmert.

    Mr. GOHMERT. Thank you, Mr. Chairman. Thank you, witnesses, for being here today. It is an important issue that has never been dealt with before because of the observation of this delicate balance of power.

    I have to confess to you, in my year and a half of becoming a seasoned veteran in Congress, I have been so much more concerned about the judiciary overreaching in power, and I really had not looked at that time executive function. But since we dealt with the PATRIOT Act and the request to make the PATRIOT Act permanent and the struggle over that and then the revelations about the NSA and over phone logs and things, and then this following on those heels, I have become more concerned. There has been a lot of talk about the speech and debate clause in section 6 of the Constitution.
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    One of the things that has also intrigued me is section 5 of the Constitution that says each House may determine the rules for its proceedings, punish the Members for disorderly behavior, and it was my understanding that there may have been some talk early on in this Nation's history that perhaps, unlike what we believe, should be appropriate, there were those who thought that Congress should punish even criminal offenses because it says Members of each House may punish their own Members, and that over time it has become the practice that, certainly, they are not above the law here in Congress, and that they can and will be prosecuted, the history being that the House Ethics counsel, when they discover any evidence of wrongdoing, would turn those documents over to the Department of Justice for prosecution. Because if somebody is corrupt, we want them out of Congress.

    I am curious if you might have something to add to that. I know you each have prepared statements, and those will be part of the record. But I am curious, given your collective wisdom and knowledge about this body and about the executive and the cooperation of powers.

    But we appreciate your being here today. I look forward to your comments. You know, some people have said you guys are just defending Jefferson, and I agree, if they are talking about Thomas Jefferson. But that is the way I see it. I am not defending any other Jefferson other than Thomas Jefferson, and the current concerns he had about the Congress and its powers being usurped and intimidation from the other branches coming to bear.

    Thank you very much, Mr. Chairman.

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    Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, you have to begin this discussion with the premise that no one is above the law. In that light, no one has said, to my knowledge, anything about the fact that Jefferson, Representative Jefferson's home was searched. No one said anything about that.

    There is a suggestion that there is some kind of immunity for Congressmen from arrest. You know, there is a temporary immunity from arrest, if you are on your way to voting, the local sheriff can't hold you until the vote is over, but you are ultimately responsible to answer for whatever criminal charges there are.

    So no one is above the law, but there is a concern with this because this kind of search hasn't happened in the history of the United States. In over 200 years, it hasn't happened. It didn't happen in Representative Cunningham's case. It didn't happen in the Abramoff investigations. It didn't happen when Representative Traficant was accused of taking kickbacks right from his office. It wasn't used in the bank scandal, or even ABSCAM.

    What is so special about this case that this procedure had to be used? I am also concerned about the breadth of the subpoena. I think the analysis would be different if the subpoena had been based on the fact that a reliable informant had said there is evidence that can be found in the lower left hand drawer, say, the money was there. They went in and executed the search warrant, came out with the money and left. I think the analysis would be a little different than the FBI staying there for 18 hours, rummaging through everything, including documents, which you have to read all documents to know what you have, which means all of the information, all of the sources. If you are going to have an impeachment inquiry, all that information has to be made sensitive information from constituents, all is to be read before you can get to anything that you know might be used.
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    We have a precedence, a couple of decades ago, that dealt with FBI searching newsrooms. I think we are going to hear something from the witnesses about what we did in that case because of the potential of abuse. Now, at least in this case, at least we had judicial oversight, unlike the NSA wiretaps, up like picking up the telephone numbers, unlike designating somebody an enemy combatant—at least you had judicial oversight. We will hear testimony from the witnesses as to whether or not that makes much difference.

    But I appreciate, Mr. Chairman, you calling the hearing. This is a very important issue. I look forward to our witnesses' testimony today.

    Chairman SENSENBRENNER. The gentleman from California, Mr. Issa.

    Mr. ISSA. Thank you, Mr. Chairman, I want to thank all of the witnesses for being here during a recess. Professor Turley, I am confident that we are not going to get locked in today. We have assurances there will be no air hammers used any time anywhere. This is, in all seriousness, an extremely important hearing, not because of what we are going to learn, although I know we are going to learn that is going to be significant.

    It is extremely important because the American people do not begin to understand why there is a concern. Their assumption, quite rightfully, is no one is above the law. Hopefully today, undoubtedly today, having looked through your testimony, people will begin to understand that it has always been a big deal when one branch of Government seeks to use a subpoena or any other form of legal document or, for that matter, brute force, to enter and to cast some question of the sovereignty of the other branch.
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    This was true, as I know we are going to hear in Abraham Lincoln's time, it certainly was true when this Committee and the Senate Committee sought to receive records from President Richard Nixon, went to the Supreme Court. It did not result in the Capitol Police showing up in the Oval Office and wanting to pull tapes out of drawers.

    I hope today that the American people will be the greatest beneficiary of your statements. I very much appreciate your being here for just that purpose. I yield back.

    Chairman SENSENBRENNER. The gentleman from Maryland, Mr. Van Hollen.

    Mr. VAN HOLLEN. Thank you, Mr. Chairman, thank you for holding this hearing. I thank all the witnesses for being here. I will be very brief. I think this is an important hearing. I think, as others have said, that there are many other areas where this executive branch has exerted their authority, and I think overstepped their grounds, and I think it would have warranted a hearing as well, in fact, probably warranted one as more or at least as much as this hearing.

    We have heard the cases, of course, of the domestic wiretapping exercises by the Administration, and what is going on there. We have got the continuing practice of signing into law statutes with caveats, with signing statements, that essentially reinterpret those statutes to the benefit of the executive branch, just imposing their view on and their stamp on a law that was passed by Congress. I think all those areas warrant hearings. It's good to see, Mr. Turley, Professor Turley and Mr. Fein here.
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    In fact earlier, Mr. Conyers had a hearing that we had in the basement of this building, on the wiretapping issue, because we didn't have a full Committee hearing in the Judiciary Committee dedicated specifically to the issue of domestic wiretap, and we haven't had one devoted to that issue since it was broken by The New York Times last December.

    I think, Mr. Chairman, that that also was an example of executive branch action and overstepping. I not sure to the extent there was overstepping in this particular issue. I am very interested in hearing the testimony.

    As Mr. Scott said, a warrant was issued flew the judicial branch, so I am sort of open-minded with respect to this particular constitutional question. I think there have been other incidents, as I alluded to, where the overstep being of the executive branch was even more clear. I hope, as we go down the road, we will look into those issues as well.

    Thank you, Mr. Chairman.

    Chairman SENSENBRENNER. Thank you, Mr. Van Hollen.

    Without objection, all Members will have 5 legislative days in which to submit additional materials for the hearing record.

    I would now like to introduce our witnesses for today's hearing. The first witness is Professor Charles Tiefer of the University of Baltimore Law School. Before joining the faculty there, Professor Tiefer was Assistant Legal Counsel to the United States Senate from 1979 to 1984. He then served as the Solicitor and Deputy General Counsel for the U.S. House of Representatives from 1984 to 1995.
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    Professor Tiefer has written extensively on separation of powers issues, and he is the author of the only treatise on congressional practice and procedure. He is a graduate of Columbia College and the Harvard Law School.

    Our second witness is the Honorable Robert S. Walker, who represented the Sixteenth District of Pennsylvania for 20 years. During his tenure in the House, former Congressman Walker served as Chairman of the Science Committee as well as chief deputy, Republican whip. He currently serves as Chairman of Wexler & Walker Public Policy Associates, a Washington-based government affairs firm.

    The third witness is Professor Jonathan Turley of the George Washington University Law School. Professor Turley is a nationally recognized legal commentator and constitutional scholar. He is a graduate of the University of Chicago and Northwestern University School of law.

    Our fourth and final witness is Mr. Bruce Fein, who is a principal at the Lichfield Group. Mr. Fein served as Assistant Director at the Office of Legal Policy at the Department of Justice, and he is the author of several volumes on the U.S. Supreme Court and the U.S. Constitution. He is a graduate of Harvard Law School.

    Chairman SENSENBRENNER. I welcome all of the witnesses and look forward to hearing your testimony. It is the practice of this Committee to swear in the witnesses. So would you all please rise and raise your right hand.

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    [Witnesses sworn.]

    Chairman SENSENBRENNER. Let the record show that each of the witnesses answered in the affirmative. Usually we have a 5-minute rule here. What I will do is be very liberal in exercising the 5-minute rule, but the lights will be on. When 5 minutes is up, there will be a red light in front of you. So if you would kind of wrap it up at your own pace, and then we can get to questions.

    Professor Tiefer.


    Mr. TIEFER. Thank you, Mr. Chairman, Mr. Ranking Member and Committee Members. I was Solicitor and Deputy General Counsel of the House from 1984 to 1995. That is the office that represents the bipartisan leadership group of the House of Representatives in court.

    The Framers' purpose in the speech or debate clause of the Constitution was ''to prevent intimidation by the executive'' of the Congress. That's the Supreme Court's term, ''intimidation.'' The clause applies to all the records in the Congress of legislative activities, not just floor speeches and bills, but most of the work in Committees and legislative caucuses.

    Its privilege is not that it puts Members above the law, Members are frequently investigated, frequently charged, frequently tried, frequently convicted. But it is an absolute privilege against law enforcers getting or seeing or using the legislative records that I just talked about.
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    During my 11 years in service for the House, and 4 years in a similar Senate office before then, many investigations occurred successfully of Members of Congress. I have cited some of them in my testimony. They started with ABSCAM, which occurred soon after I started work. We had Congressman Flake, Congressman Biaggi, Congressman Rostenkowski, Congressman Swindall, Congressman McDade. Several of these were acquitted, several of these were convicted. The process succeeded. It worked. Not during that time, not before then, not since then, in 2 centuries has the Justice Department ever resorted to a raid on Congress to get its evidence.

    Now, this raid had all the elements of unconstitutional executive intimidation. It breached what I have just described, a previously sacrosanct constitutional tradition without, not just without a showing of a unique necessity, but not even a claim of unique necessity. If you read carefully, the materials that had been reached by the executive branch, it does not claim that there was some exigent circumstance necessitating a new method. There is not a claim that even one piece of paper would have been lost by the traditional methods.

    It was planned wrongly. There were no executive guidelines worked out with the House's protocols, no prior adversary judicial proceedings, no prior notice to the House leadership, nor any kind of consent or consultation, which meant that there was no dealing with the very serious objections that would have been made, that I would have made during my time, my predecessors, my successors, that anyone, knowing the constitutional, institutional interest of the House, would have made. Now we look at those methods.

    What were those methods? I think that the opening statements of the Chair and the Ranking Member and the other Members have ably brought out what was involved in those methods, sweeping, indiscriminate, wholesale search by the FBI of the entire office of this Member for 18 hours during the night, and the downloading of the whole hard drive of his computer, besides carting away reams of documents.
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    When they take the whole computer of a Member of Congress, that means you are catching countless innocent constituents in there in your dragnet. Since every congressional office contains extensive privileged legislative materials, because that is what the Members are here to do, legislative work. That means that they are inevitably Wall Street, a wholesale constitutional violation, a wholesale intrusion by executive agents, in an intimidating way of legislative materials.

    Furthermore, there was the exclusion of the House counsel, even as a mere observer, and neither the Representative nor any counsel were enabled to make privileged objections.

    Instead, the Justice Department appointed itself to look into everything, and to decide for itself what was privileged. I have to tell you that with 15 years experience doing this work, I couldn't figure out what is legislative or not without the Member or staff putting it in context for me. I don't see how they could during that night, and I don't think they did. I think that each FBI agent could have trampled 1,000 privileged pages and most likely did.

    Thank you, Mr. Chairman, and Members.

    [The prepared statement of Mr. Tiefer follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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    Chairman SENSENBRENNER. Mr. Walker.


    Mr. WALKER. Mr. Chairman, Mr. Ranking Member and distinguished Members of the Committee, when the Republicans assumed the majority in 1995, one of our key missions was to have Members treated under law like other citizens. Some would have you believe that this particular case is all about such distinctions, but what we are discussing today is not about special rights for individual Congressmen, but the inherent rights the Constitution provides for Congress under the separation of powers doctrine.

    No citizen, including a Member of Congress, is above the law, but no agency is above the Constitution. America's great experiment as a constitutional republic rests upon those understandings. Somewhere in the Rayburn raid, the value of these fundamental understandings got lost.

    The Justice Department and the Federal Bureau of investigation have a duty under law to prosecute those citizens, including Members of Congress, who break the law. What they cannot do is use extra constitutional means to carry out their duty. Abandonment of fundamental law in the pursuit of upholding the law is a recipe for constitutional crisis.

    There are ways of obtaining needed information for criminal prosecutions that have served us for 219 years, including the use of subpoenas. The idea that the Justice Department was without recourse in the Jefferson matter is completely without merit.
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    The American people should be deeply concerned that a decision to abandon tradition and conduct a raid on Congress was made consciously and evidently at the high levels inside of the Justice Department and the FBI. Press reports indicate that this was no casual decision but a conscious decision to act in an unprecedented way. The fact that this decision making process went on with no attempt to gauge the reaction of congressional leaders is wrong.

    Now, there are lots of places to look to affix blame for this breakdown of precedent and tradition. The issue before you goes well beyond the facts of a particular alleged criminal case, but the Member involved certainly helped precipitate the situation with his noncooperation with authorities. The immediate issue may have been the Member's noncooperation, but the raid was on a co-equal branch of Government and threatened its unique status in our constitutional system.

    It might also be noted that Congress' inability to maintain a working ethics process also contributed to an atmosphere conducive to the Justice Department's action. In addition, the warrant demanding Capitol Police cooperation with a raid on the institution that they are duty bound to protect denotes a casualness on the part of the judge about the unprecedented step and questionable procedures he was approving.

    Congressional leadership must seek an explanation for the seemingly oblivious nature of the warrant process. While recognizing that the roles regarding criminal activities are different between the Congress and the executive branch, imagine a situation where the situation was reversed. One can only imagine that the concern would be if the Capitol Police were sent on a raid of an executive agency in pursuit of Congress' oversight function.
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    My recommendations to Congress for appropriate reaction to the Justice Department action are as follows. One, avoid tying the Jefferson criminal investigation to the institutional prerogatives of the Congress. The legal focus of Congress should be on definition of the separation of powers issue to assure protection of its constitutional role. In no case should Congress appear to be interfering with criminal prosecutions of its Members conducted inside the bounds of constitutional authority.

    Two, it is possible to create a set of procedures and protocols to cover search warrants the Department of Justice might want to execute on a congressional office, but such procedures and protocols can and should be worked out consistent with the speech or debate clause.

    Three, demand a full accounting for the decision making process that led to the Rayburn raid. The Judiciary Committee should be prepared to subpoena documents tied to this incident.

    Four, institute processes for appointed congressional officials and employees to follow in the event of incidence of a similar nature. If the Rayburn raid was a precedent for coming attractions and intimidating tactics, the way Congress responds initially must be improved.

    Five, seek an explanation for what seems to be a lack of judicial respect for the traditions and precedence that have insulated legislative deliberations from the threat of overzealous exercise of executive power. As the Justice Department rationale has played itself out over a period of several days, it is clear that they believe that the ends justified the means in pursuing their case against Congressman Jefferson.
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    But the means deployed violated precedent, tradition and possibly constitutional parameters. Nothing in the Forefathers' view of representation Government was more important than protecting Representatives from the unfettered use of executive authority. So they used the means of Governments to restrict that authority.

    By substituting ends to means, the Justice Department has sought to redefine a relationship 219 years in the making. They did so purposefully and with malice aforethought, and they have sought to use the sordid details of the Jefferson case as an excuse for the unprecedented incursion into the fundamental legislative rights.

    It is a constitutional tragedy that this incident happened, a tragedy that will only be compounded if allowing ends to justify the means is permitted to stand unchallenged by a Congress unwilling to stand firmly for its most basic obligations to governance and posterity.

    Chairman SENSENBRENNER. Thank you, Mr. Walker.

    [The prepared statement of Mr. Walker follows:]


    Mr. Chairman,

    No citizen, including a Member of Congress, is above the law. But no agency is above the Constitution. America's great experiment as a constitutional republic rests upon those understandings. Somewhere in the Rayburn raid, the value of these fundamental understandings got lost.
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    The Justice Department and the Federal Bureau of Investigation have a duty under the law to prosecute those citizens, including Members of Congress, who break the law. What they cannot do is use extra-constitutional means to carry out their duty. Abandonment of fundamental law in pursuit of upholding the law is a recipe for constitutional crisis.

    The American People should be deeply concerned that a decision to conduct a raid on Congress was made consciously and evidently at high levels inside the Justice Department and the FBI. Press reports indicate that this was no casual decision, but a conscious decision to act in an unprecedented way. The fact that this decision-making process went on with no attempt to gauge the reaction of key congressional leaders is wrong.

    The issue before you goes well beyond the facts of a particular alleged criminal case. The Member involved certainly helped precipitate the situation with his non-cooperation with authorities, but that does not obviate the circumstances that led to an attack on the institutional prerogatives of the Congress. The immediate issue may have been a Member's non-cooperation, but the raid was on a co-equal branch of government and threatened its unique status in our constitutional system.

    The warrant demanding Capitol Police cooperation with a raid on the institution that they are duty bound to protect denotes a casualness on the part of the judge about the unprecedented step and questionable procedures he was approving. Congressional leadership must seek an explanation for the seeming oblivious nature of the warrant process.

    While recognizing the difference in roles regarding criminal activities, imagine a case where the situation was reversed.
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    My recommendations to Congress for appropriate reaction to the Justice Department's action:

1. Avoid tying the Jefferson criminal investigation to the institutional prerogative of Congress. The legal focus of Congress should be on definition of the separation of powers issue to assure protection of its constitutional role. In no case should Congress appear to be interfering with criminal prosecutions of its Members conducted inside the bounds of constitutional authority.

2. Demand the return of any files taken during the Rayburn raid (as the leadership has already done) and be prepared to pursue this demand all the way through the Supreme Court. Materials seized in the Rayburn raid clearly included constitutionally protected legislative documents and files.

3. Demand a full accounting for the decision-making process that led to the Rayburn raid. The Judiciary Committee should be prepared to subpoena documents tied to this incident.

4. Institute processes for appointed congressional officials and employees to follow in the event of future incidents of a similar nature. If the Rayburn raid was a precedent for coming attractions and intimidating tactics, the way Congress responds initially must be improved.

5. Seek an explanation for what seems to be a lack of judicial respect for the traditions and precedents that have insulated legislative deliberations from the threat of overzealous exercise of executive power.

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    Chairman SENSENBRENNER. Professor Turley.


    Mr. TURLEY. Thank you, Mr. Chairman, Representative Conyers, Members of the Committee. It is a great honor to appear today. I have been assured by the House Judiciary Committee that unlike the House Intelligence Committee, I will be allowed to leave at the end of my testimony. But just in case, I brought snacks if things go badly.

    On a more serious note, we are here for a serious purpose. There have been very few times that this House has faced a moment of self-definition, where your identity and your dependence are at issue. The raid on this office of Representative Jefferson represents a profound and almost gratuitous insult to a co-equal branch of Government.

    In the history of this country, no President has ever ordered or allowed a search of the office of a sitting Member of this House. Now, there is a reason for that, that over 200 years this hasn't occurred. It is not because there has been a lack of interest of criminal investigators. There have been many investigations and many prosecutions. But there has been a tradition of mutual respect and mutual restraint between the branches.

    What occurred on that Saturday shattered that tradition. Now, many of our most important constitutional values and traditions are not spelled out jot-for-jot in the text of the Constitution. They are part of a long-standing term of engagement between the branches. As I have laid out in my written testimony, there is a long history, and there is a long constitutional record to support the privileges of this House.
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    This is a question of means. It is a question of scope. This search was an abuse because it was unnecessary, and it was excessive, and it did great violence to the values of our constitutional system.

    Now, I was asked once, what was the most important authority I could cite to this Committee by a reporter last week, and my response was that I would have every Member read Robert Frost, Mending Wall, because like that poem, the Constitution believes that good fences make good neighbors. That's the whole principle of the separation of powers. Good fences make good neighbors.

    We have a tripartite system that creates walls, and there is no tension in that system because no branch has the authority to govern alone. So each branch minds the wall, minds its authority, minds its domain. To put it bluntly, the President did not prove to be a good constitutional neighbor.

    Now, as this Committee knows, there have been a series of separation of powers and controversies that have occurred over the last 3 years. I mention some of them in my statement. I will not go into those. It was purely for the cathartic value of knowing that we are in a crisis and one that this Committee, I commend, for holding a hearing to look at this incident in that context, because it is a disturbing mosaic.

    The walls of the Constitution are found in the first articles, the first three articles, of that document, as well as other parts. But the first three articles contain those structural limitations, including section 6 of article I. It was put there to protect the independence of this body from intrusions by both the executive and the judicial branches.
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    The mere fact that this search occurred with the authority of a Federal judge does not mitigate the problem. The Framers anticipated that it would occur that two branches would turn on a third branch. In all of the references to the clause in the Supreme Court, it is often the executive and judicial branch that are discussed together in terms of the dangers that this clause is meant to avoid.

    In our system of Government, it matters how you do something, not simply whether you do it. No one is suggesting that Congressman Jefferson is above the law or that any Member of this House is above the law. That would be facially absurd.

    No one is suggesting that a Member of Congress cannot be investigated. No one is suggesting that a Member of Congress may squirrel away incriminating evidence in their office. This is a question about means, and the means used here gave great constitutional offense.

    In my testimony, I go through the various reasons why the search was so offensive. One of them is the availability of other means. What is most baffling about this search is that the affidavit that accompanied the search, that secured the warrant, stated, under oath, that the Government has exhausted all other reasonable methods to obtain these records.

    In my view, that's facially untrue, because there are methods that could have obtained these—this material, without doing such a great constitutional insult to this body. It has been done for over 200 years. They could have sought a court order to compel Congressman Jefferson to comply. If that order was ignored, they could have sought an order for his incarceration.
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    Second, they could have sought in the court procedures to allow for the turning over of this material, that is part of the traditional method of the subpoena approach.

    Third, they could have sought to seal the material or the office by simply going to the House with a legitimate law enforcement interest so that no material would have been in danger of being lost or destroyed. Finally, they could have sought direct action against a Member here if he refused to comply, which I quite seriously doubt.

    The scope of the search is equally troubling. There is no question that this search did acquire a large amount of legislative material covered by the clause. The Supreme Court has said that what constitutes legislative material is broadly defined to achieve the purse of the clause. The hard drive of the computer is of particular concern.

    By taking the hard drive of a Member, it's akin in the Framers' day of taking every single piece of paper out and a Member's office. If they had went in and removed every single piece of paper, people would not be debating how serious that is, but today that is exactly what happens when you take a hard drive.

    There was a lack of exigency. This target of the search knew 8 months ago that they wanted to get this material. During that period no reasonable effort was made to use alternative methods.

    I have suggested in my testimony that this court, this Committee, consider enacting a law that is analogous to the Privacy Protection Act that protects the media from the use of search warrants against their office. That was a wonderful decision, a wonderful law created by this Congress to protect the first amendment rights of journalists. You should have less protection under statutory law.
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    Let me first conclude that when Frost wrote the Mending Wall, he noted ''Something there is that doesn't love a wall.'' We know in separation of powers, that is very true because all branches have chafed at the walls that confined them.

    But good fences make good neighbors, and you have mended that wall, and you have maintained it. We have to remember that it is your duty. This is the people's House, not yours, not Representative Jefferson's. We expect you to return this institution in the same condition you found it, as an independent and vigorous representative body. Anything else would be a betrayal, not just of yourselves, but of your institution.

    Thank you.

    Chairman SENSENBRENNER. Thank you, Professor Turley.

    [The prepared statement of Mr. Turley follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Chairman SENSENBRENNER. Mr. Fine.

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    Mr. FEIN. Mr. Chairman and Members of the Committee, checks and balances are every bit as indispensable to our civil liberties as the Bill of Rights. Yet the Bush administration has been bent on a scheme for years of reducing Congress to akin to an extra in a Cecil B. DeMille political extravaganza, signing statements that are the equivalent of line item vetoes, the assertion of executive privilege to deny Congress any authority to oversee executive branch operations, a claim of inherent presidential authority to flout any statute that he thinks impedes his ability to gather foreign intelligence, whether opening mail, conducting electronic surveillance, breaking and entering, or committing torture.

    This latest use of a search warrant by the executive branch to rummage through the files of a Member's office is simply an additional instrument of the Bush administration to cow Congress. It is exceptionally important that the Congress respond clearly and authoritatively with a statute that rejects the authority of the executive branch, whether or not a search warrant is authorized by a judge, to look through the files of a Member's office and glance at legislative protected materials under the speech or debate clause. That kind of authority can be abused to intimidate, to cow Congress into submission to executive desires.

    Principles unchecked lie around like loaded weapons, and they will be used whenever an urgent need the claimed by the incumbent. That is why it is so important to reject the principle involved in the search warrant, not focus on the details of the Jefferson warrant and search.

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    The speech or debate clause is violated whenever the executive branch would obtain a search warrant that would require reading the files of a Member's office in order to determine whether any of the documents fit the demand of the search warrant. That is the only way in which a search warrant for documents can be implemented. You have to read every file to know whether or not it identifies something in the search warrant. That inescapably means when you are searching a legislative office, you must come across speech or debate protected materials.

    As soon as the FBI looks at those documents and reads it, comes across, perhaps, sensitive political strategy, information in the hands of a Member, questions that might be asked during oversight hearings, the violation occurs. The memory of the official cannot be erased. It is then part of the executive branch apparatus pool of knowledge that can be utilized to implement the power, to cripple the congressional oversight and legislative function.

    In my judgment, it makes no sense to be satisfied with protocols with the Department of Justice asking us that warrants be administered in particular ways. Because the breach occurs whenever there's an obligation to open your files to the executive branch, under any circumstances.

    That is exactly why this Congress in 1980, after the Supreme Court's decision in Zurcher v. The Stanford Daily, held that the FBI, under the fourth amendment, could raid press offices and enacted the statute when it comes to the work product of the press, it doesn't matter how important to proving a crime, it's off limits. A subpoena can be utilized. If it is frustrated, it is more important that criminal justice be frustrated than that we have a timid and effete free press.

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    That is the same judgment the Founding Fathers made with regard to the speech or debate clause. It is different than any other clause protecting executive branch or judicial deliberations. It is expressed in the text. The Founding Fathers worried that Congress would be too weak, not too muscular. It worried about an executive branch and judicial branch that would deter Congress from asserting the prerogative that comes from the people directly.

    That is why, I think, it would be misplaced to try to focus on any analogies with regard to searching executive branch or judicial branch offices, because they lack that explicit constitutional Constitution enshrined in article I, section 6.

    Of course, the Founding Fathers were not so foolish to think that all Members would be saints. There would be some who would go astray. There are ample methods under the law in the Constitution that can prove criminal activity of a Member without requiring rummaging through their files. I underscore ''files,'' because that is what is protected by the speech or debate clause, not cash, not evidence, an instrumentality of crime, drugs, a handgun, a corpse.

    Many of the of attempts to satirize the claim of privilege have attempted, I think, to distort what is at issue here by suggesting how foolish it would be that you couldn't walk into an office and see demonstrative evidence of crime and seize it. Of course you can. You are not trenching on the speech or debate clause.

    But when it comes to documents, the only way you can search is to read everything. When you read everything you encroach on the speech or debate clause. I would urge Congress to act swiftly in protecting the Members, not because we prefer that crime go unpunished, but the institution prerogative is so important to our institutional liberties, it is also, I think, wrong to suggest that simply because a Member provokes an investigation by the executive branch that, therefore, there must be guilt.
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    Oftentimes, investigations are unable to prove any wrongdoing. This Administration seems to operate on the assumption that the only people who would object to any of their investigative methods, electronic surveillances without warrants or otherwise, being identified as an illegal combatant and held forever without judicial review, are those who must be held guilty in wrongdoing.

    But the law and the investigators get it wrong oftentimes. That is why we have procedural protections. The executive branch can make errors. It's not infallible. We locked up 120,000 Japanese-Americans in World War II based on the fallacious belief they were all plotting treason or some sort.

    I would urge the Congress to work with the Senators and the President himself in crafting this legislation. It should not come apart because of a sense that this branch is in a position of self-protection and indulging its own Members. You are operating here in defense of separation of powers. That's the highest calling of any member of the executive branch.

    I would look to close also with the comment on the so-called threat of the Attorney General, the deputy attorney general, to resign if the speech or debate clause is enforced. Well, let them resign.

    I am astonished that the President wouldn't have fired them for undertaking this action without consulting him in advance. This is not esoteric constitutional law. Article I, section 6 is very explicit. If the Justice Department feels the need to resign, so much the better. We need people there who respect the law and the Constitution rather than those who believe their mission is to aggrandize the executive branch.
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    Thank you.

    Chairman SENSENBRENNER. Thank you, Mr. Fein.

    [The prepared statement of Mr. Fein follows:]


    Dear Mr. Chairman and Members of the Committee,

    I am grateful for the opportunity to share my views on the Executive Branch's employment of search warrants in criminal cases to seek documentary material in various formats located in the office of a Member. The issue has come to prominence because of the unprecedented search of Congressman Jefferson's office for documentary evidence of suspected bribery or fraud. I respectfully submit that such warrants conflict with the purpose if not the letter of the Speech or Debate Clause because they inescapably expose legislative acts to the prying eyes of the Executive. I would urge Congress to enact a statute that would prohibit search warrants for documents in legislative offices comparable to the protection afforded the news media under the Privacy Protection Act of 1980. That would not leave criminal investigators helpless. They could still employ subpoenas to obtain relevant documents, and obtain contempt sanctions for unjustified refusals to comply. In some cases, the Fifth Amendment privilege against compulsory self-incrimination might frustrate the subpoena and the criminal investigation. In other cases, a Member might prefer contempt sanctions to compliance. But the Speech or Debate Clause premise is that insuring a fearless and uncowed legislative branch in some cases should trump criminal law enforcement.
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    The Founding Fathers were alert to the danger of entrusting to the executive branch or the judiciary powers to investigate, prosecute, or punish alleged criminal activity of Members through proof of legislative acts, including intramural correspondence and political strategy. Such a Sword of Damocles would deter Members from opposing legislation championed by the President or conducting forceful oversight. The Executive's discretion to investigate is virtually limitless. As then Attorney General Robert Jackson lectured in 1940, the countless technical statutes in the federal code invite prosecutors to select political opponents as potential criminals and then scour the books to pin an offense on them, in lieu of discovering a crime and then searching for the culprit. The Speech or Debate Clause answers this potential prosecutorial abuse as regards Members by categorically prohibiting the use of legislative acts to prove a crime, i.e., those things generally said or done in the House or Senate in the performance of legitimate official duties, such as fashioning political strategy for passing or defeating a bill or investigating the Executive Branch. The Founding Fathers thought it more important that crime escape punishment than that the Congress lose its force as a check against executive usurpations or folly.

    Search warrants for documentary evidence in legislative offices are irreconcilable with the Speech or Debate Clause. A search warrant allows the F.B.I. to ransack the files of a Member, reading each and every document in hopes of discovering those described in the warrant. But legislative office files invariably include volumes of documents within the protection of the Clause, for example, correspondence with colleagues concerning pending or potential legislation, strategy for ''killer'' amendments, or questions for Executive Branch officials in oversight hearings. The Clause is offended the moment the F.B.I. peruses a constitutionally protected legislative document. Even if the document is not seized, memory of its political contents remains in the Executive Branch for use in thwarting congressional opposition or leaking embarrassing political information. Documentary searches are further intimidating to Congress because the ''plain view'' doctrine of the Fourth Amendment would entitle the F.B.I. to seize any material in the course of reading office files concerning crimes unconnected to the search warrant. The knowledge by a Member that the F.B.I. can make an unannounced raid on his legislative office to read and rummage through every document or email is bound to discourage Congress from the muscular check against the Executive that the Speech or Debate Clause was calculated to foster.
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    A subpoena in lieu of a search warrant would permit Members to produce only the specific documents requested and avert executive prying into confidential legislative acts. A subpoena admittedly might not prove as effective. The Member might invoke the Fifth Amendment to decline production. And even if a court ordered compliance, a Member might prefer contempt sanctions to F.B.I. agents ransacking his office files. In other words, while requiring subpoenas and banning search warrants to obtain documentary evidence in a Member's office could conceivably derail a criminal investigation, that price was anticipated by the Speech or Debate Clause to vindicate the Constitution's separation of powers.

    I would thus urge Congress to enact a statute as a necessary and proper adjunct to the Speech or Debate Clause as follows: ''No search warrant in a criminal investigation shall be issued to obtain documents located in the office of a Member of Congress. A violation of this prohibition shall result in the suppression of any evidence that would not have been discovered but for the illegal search and the expunging of such evidence from the records of the Executive Branch. This law shall apply retroactively.''

    It might be said that the statute is a ''special interest'' law to protect Members of Congress and clashes with the constitutional prohibition on titles of nobility. But the Speech or Debate Clause is expressly and inherently a special protection for Members in recognition that there are occasions when criminal justice should be subordinated to the more compelling political interest and in a fearless Congress. The Clause might be likened to the President's pardon power, which permits the frustration of criminal justice to advance competing interests. Moreover, the proposed statute frowning on search warrants for documentary evidence in Members offices would work no novelty. The Privacy Protection Act of 1980 shields the work product of the media from search warrants. Pursuant to the Act, limitations are erected by Department of Justice regulations, 28 C.F.R section 59, for search warrants seeking documentary materials in the possession of persons not suspected of crime, with special deference to confidential relationships as may exist between lawyer and client, doctor and patient, or clergyman and parishioner.
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    Today, the Speech or Debate Clause is more important than at the Constitution's inception. Then, federal crimes were few and criminal investigations of Members a rara avis. It was not until the 20th century that Members began to be targets of Executive Branch criminal investigations. And as the federal criminal code has dramatically thickened, the opportunity for the Executive Branch to contrive an excuse for raiding the files of a Member has correspondingly expanded. That strengthens the reason for this Congress to erect an impenetrable barrier between federal criminal investigations and the official files of Members. Separation of powers is too important to be left to the discretion of the President.

    Chairman SENSENBRENNER. First of all, let my say that I think your suggestion and the suggestion of Professor Turley that the Congress be given the same protection of its work product that the news media has following its work product, following the Stanford Daily case, is a good one.

    This congressional Committee will be working promptly in drafting legislation to implement this, and we will be working with the Senate and consulting with the White House on this.

    The issue really is one of procedure, rather than one of the allegations of criminality by Mr. Jefferson. I think that we want to make sure that when the next Congressman is investigated for illegal activity, that the procedure done by the Justice Department is right. So I think this law will help the Justice Department get it right next time because they didn't get it right this time.

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    The second point I would like to make is that I would like to have at least two more hearings on this subject, another hearing where people such as yourselves can talk about the historic and constitutional arguments as a result of the speech and debate clause evolving over the last 219 years.

    Then I want Attorney General Gonzales and FBI Director Mueller up here to tell us how they reached the conclusion that they did. Because I think all of you have said that reaching that conclusion is profoundly disturbing, not in the context of the Jefferson investigation, but in the context of separation of powers and preventing the Congress from being intimidated by the executive branch, and thus not being able to do the job that we were elected to do.

    Having said that, Mr. Fein, schedule B of the search warrants lists ''items to be seized from Representative Jefferson's congressional office.'' That has all been redacted by the Justice Department.

    Whatever is on that list, and I think only the Justice Department knows, shouldn't someone representing the institutional interests of a co-equal legislative branch of Government have been given the opportunity to argue to a court whether or not the procedures and the list comported with constitutional norms were not?

    Mr. FEIN. Well, that certainly would have been the appropriate thing to do. After all, the FBI is not schooled in speech or debate clause. They wouldn't necessarily know whether they were coming upon a protected document or not. At least someone in the legislative branch could alert the judge and have perhaps special descriptions of documents that could not be examined in the execution of this warrant.
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    But I come back, Mr. Chairman, to the idea that inherent in executing any search for documents is going to necessitate someone rummaging through that official file. It's going to require reading legislative protected materials. You can't expunge memory. Once you have read it, the violation has occurred. That's the same reason why this Congress enacted the Privacy Protection Act for the news media.

    Once the constitutional resource is discovered in rummaging through the press files, the name doesn't just fall away by amnesia. That is why I think this broad-based statutory protection is indispensable, even though procedural mechanisms could alleviate the danger.

    Chairman SENSENBRENNER. Also, isn't the issue very similar to testimonial privileges that are given to clients of lawyers and patients of doctors and penitents who confess their sins to priests, in that the determination of what is privileged or not belongs to the person who has the privilege, rather than someone who wants to look at privileged material and then determine whether or not it is privileged after seeing it all?

    Mr. FEIN. That's correct, Mr. Chairman, and in connection with the Privacy Protection Act that created this blanket protection for the news media, was also a section title 2, that required the Department of Justice to issue regulations that specifically would protect the lawyer-client, doctor-patient, clergy-parishioner privilege from unmitigated search warrants and requiring some sort of in-camera judicial review of a warrant to determine whether or not they were protecting materials.

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    So those relationships have been protected especially by regulation demanded by this Congress. But the Congress here has a superior claim of privilege. It is written right into the Constitution of the United States and is so critical to vindicating separation of powers that transcends these other confidential relationships that are important but don't have that constitutional stature.

    Chairman SENSENBRENNER. Thank you very much.

    The gentleman from Michigan, Mr. Conyers.

    Mr. CONYERS. Thank you, Mr. Chairman. I want to thank the witnesses in particular. This is a very appropriate group of four, well-trained experienced people, coming before us to advise the Committee, and, by extension, the American people of the gravity of the problems that we face.

    Now, was it proper for the Justice Department to prevent the House counsel, as well as the Congressman's attorney, from being permitted to be present while his offices were searched for some 18 hours? What were they trying to do, Professor Turley, in that particular sorry exercise of authority?

    Mr. TURLEY. Well, that's one of the most baffling aspects of the search. The ironic thing is that when the House general counsel said, can I be present to witness the search, she was actually suggesting something that would have been of great benefit to the executive branch.

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    If they had simply allowed her in the room, they could have claimed some element of mitigation, some aspect of moderation. Excluding her was an extraordinary act. All she wanted to be able to have a legislative official present. It really does cross over into raw arrogance to tell such a legislative official, we won't even let you stand in the office.

    As for the attorney, rule 41 of Federal Rules of Criminal Procedure, anticipate that an attorney or the subject of a search will be present. Most search warrants, as those of us who practice criminal defense law will tell you, most search warrants will have an inventory provision where you actually sign off as to what was taken.

    For the FBI to say it's no longer our policy to allow someone present during such a search once again brings up this question of whether we now have such unbridled authority and arrogance that the executive branch will not even allow witnesses to the execution of its authority.

    Mr. CONYERS. Professor Tiefer, what do you think was behind the fact that we haven't ever had this happen before in 219 years? Was there some motivation that still wasn't clear on the part of the Department of Justice to act in the face of all the restrictions that have been recited here this morning?

    [10:30 a.m.]

    Mr. TIEFER. Mr. Conyers, I tried to understand both from what records we have and from information that the FBI has leaked to the newspapers what the surrounding circumstances were here. There is no sign whatsoever of a claim by the Department of Justice, as I said in my opening statement, no claim, nor could there be, but the point is they are not even claiming they were facing an emergency, facing exigent circumstances, facing a situation where they couldn't get at the evidence the same way. They were simply in a hurry.
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    They seemed to have been in a hurry because they got themselves into a problem with an appeal from a proceeding in another district, and they didn't move that appeal along fast enough and they weren't willing to do, as Professor Turley suggested, to apply to a District Court for a court order, something which they could always do which could allow adversary proceedings and could involve supervision of the methods and could involve consultation with the congressional leadership and could involve some protocols, and would have brought us closer to the tradition of the last two centuries.

    There has not been any suggestion whatsoever as to why there was a need to break with that tradition. They are investigating a Congressman. Is it different from all the other prior investigations of Congressmen? No.

    Mr. CONYERS. Congressman Walker, the part that disturbs me as much as any other is that they told the Capitol Police that they were going to break down the doors of this congressional office if they didn't stand aside and let them in without any further to do, and it seems to me that that was really an act of threatened violence that goes way, way across the line.

    Mr. WALKER. Well, I certainly agree with that, and what, as I say, what does concern me as well is that the whole warrant process to basically place a threat upon the Capitol Police, if they didn't cooperate that all sorts of things were going to happen, strikes me as being a complete overreach.

    And so, as has been mentioned in the testimony here, what you have that is particularly disturbing is the executive and the judicial branches teaming to make a raid on the Congress with, as I said in my testimony, malice aforethought.
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    Mr. CONYERS. Thank you, sir.

    The CHAIRMAN. The gentleman from Texas, Mr. Gohmert.

    Mr. GOHMERT. Thank you, Mr. Chairman. Here is a quote. ''I said to the President, if the equilibrium of the three great bodies, legislative, executive, and judiciary, could be preserved, if the legislature could be kept independent, I should never fear the result of such a Government, but that I could not but be uneasy when I saw the executive had swallowed up the legislative branch.''

    The President to whom that was spoken was named Washington and Thomas Jefferson is the one that said it. Apparently, this has been an ongoing struggle to keep this delicate balance of power going.

    Now, in looking at precedent, as I have heard some people on television react, who perhaps were in the boat that I was originally, as a judge, a State judge, trial judge and former chief justice of an intermediate State court of appeals, I have signed hundreds, I don't know, thousands of warrants, reviewed lots of affidavits, gee, I'd never had an article I, section 6 question come up before. So I was unfamiliar with this, but began to do some digging.

    You may have heard other people say in the media that, gee, there is a precedent for this because the Department of Justice has gone in and searched a judge's offices before. For whoever may wish to address that, could I get some comment on that being cited as a precedent? Mr. Fein?
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    Mr. FEIN. Mr. Member, if you look at article III of the Constitution, which addresses judicial power, there isn't anything comparable to the Speech or Debate Clause. We're addressing an explicit recognition by the Founding Fathers that the legislative branch needed special protection. They had experience with the efforts of the British King and executive to attempt to intimidate Parliament through criminal prosecutions and investigations. So they made a special effort to strengthen Congress' institutional capacity to check the executive or the judicial branches. They didn't fear that the judges would be intimidated. There is no express guarantee of a speech or debate kind of privilege on that score.

    And it also seems to me that today, as opposed to at the founding, the danger of encroachment on speech or debate is far greater. At the outset, there were relatively few Federal crimes. We didn't have an FBI, there wasn't even a Department of Justice created to investigate until 1870. Today, there are so many crimes on the books, it's as then Attorney General Robert Jackson said in 1940, the danger is the prosecutor at the executive branch looks at a legislator and then scours the books to pin an offense or investigation on him rather than finding a crime and then searching for the culprit. You know, you can get a prosecutor to indict a ham sandwich.

    Mr. GOHMERT. Have you been to Texas?

    Mr. FEIN. I think that's a more universal attribute on the prosecutor.

    Mr. GOHMERT. Okay. I know it's true in Texas.
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    Mr. FEIN. But if you have an executive branch eager to use search warrants in any criminal investigation, it can be any Member of Congress.

    Mr. GOHMERT. So there is no real parallel between searching a judge's office under the Constitution and searching a Member of Congress or the Senate's office?

    Mr. FEIN. I don't want to say there is no parallel, no indication that there isn't some enclave of privilege there, but it's not risen to the same constitutional dignity or importance as the Speech and Debate Clause.

    Mr. GOHMERT. Well, all of you mention the Speech and Debate Clause as being what is at issue here, and I have also heard people on television, so-called media experts, say, and they will put the language of the section 6 on the TV screen and say, see there, it's talking about speech and debate, it's not talking about documents; where do you get that?

    So if someone could address how in the world we get from speech and debate to documents, or hard drives. 'cause I've looked, hard drives is not mentioned in here.

    Mr. TURLEY. Well, you know, that's an excellent question. First of all, there's a lot of misinformation about reading that clause. If you look at the Federal Convention, there was very little discussion about the clause, in part because Members, I think, believed it was obvious that there had to be privileges for the legislature.

    Since 1541, the English Parliament had cited this privilege in their continual problems with the Stuart and Tudor monarchs. And so by the time the Constitutional Convention came around, it was already established that a legislature has a unique need for this type of privilege.
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    And, by the way, there is this great irony in this Administration that there seems to be no limits as to claims of what executive privilege means; that executive privilege covers the Vice President, covers everything that comes within a mile of the White House.

    Executive privilege isn't mentioned in the Constitution. It was created by the courts, and yet you have this robust interpretation. But the privilege that is mentioned apparently is too small to even slow an FBI raid on an office.

    Now, the one thing I want to emphasize is when the language therefore refers to speech or debate, the Supreme Court has been very, very clear that that goes beyond the literal meaning of those terms, and it is very broad if you take a look at some of the cases I cited in our papers. That at least is not, I assume, under debate.

    Chairman SENSENBRENNER. Before I forget it, without objection, the witnesses' statements will appear in full in the record prior to their verbal testimony.

    The gentleman from Virginia, Mr. Scott.

    Mr. SCOTT. Thank you. Well, Mr. Turley, let's kind of follow up on a that a little bit. The section 6, clause I says that ''they shall in all cases, except for treason, felony, and breach of the peace be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same, and for any speech and debate in any House they shall not be questioned in any other place.''
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    Does that immunize Members of Congress from answering for the commission of a crime?

    Mr. TURLEY. No. And this is one of the great misrepresentations we have seen in commentary. Nobody I know is arguing that this clause immunizes Members because of their status as Members of this institution.

    Mr. SCOTT. Let me follow through on another question. In the execution of a search warrant, normally when you go to somebody's house to execute a search warrant, they are there.

    Mr. TURLEY. Right.

    Mr. SCOTT. They can contest it. They can tell you that you're at the wrong house. You have an opportunity to respond.

    Was any opportunity like that given in this case, to your knowledge?

    Mr. TURLEY. No. In fact, they were barred. You have both the Representative of the institution and the legal representation of the individual both being barred from being present for this very, very long search.

    Mr. SCOTT. Now, we've heard about the exemption for searching press offices, and we've heard references to searching judicial offices. Those are inferior courts. Would it be different if we were talking about searching, rummaging through files at the Supreme Court?
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    Mr. TURLEY. Since they ultimately interpret the Constitution, I expect they would find a robust privilege somewhere. But we have seen the courts create significant protections for their own branch and for the executive branch.

    In my view, the Supreme Court has too narrowly interpreted the Speech or Debate Clause. I think if you look back at the statements of Jefferson and Madison, after the sedition prosecutions by John Adams, you will see very clear statements that they viewed speech or debate goes to an even broader range than the current doctrine would allow.

    But all of that is for an academic debate. The material in this case is, without question, legislative material covered by the clause. I can't imagine anybody would suggest a Member's hard drive would not fit in there. And it's true it's not mentioned, but the best thing to remember is that everything that used to be in paper form, when Jefferson and Madison were criticizing Adams, all of that paper today would be found on a hard drive. So it is the equivalent of doing a sweep through a Member's office back then and taking every single piece of paper in the office.

    Mr. SCOTT. Well, in terms of setting up a procedure, similar to the exemptions in the press situation, we've heard a suggestion that the Speaker of the House be notified.

    You'll have to excuse me that this Democrat isn't particularly impressed with the Republican President notifying the Republican Speaker of the House that he's about to raid a Democratic office as a protection.
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    Do we have any idea of who decides what gets looked at and does the fact that a Member cooperates or is not cooperating? Is that relevant to the discussion?

    Mr. TIEFER. If I may, Mr. Scott, I have some familiarity with the procedures. I actually want to mention something that both I——

    Mr. SCOTT. Let me ask another question, then everybody can kind of comment on it.

    And would it make a difference if you had a reliable informant tell you where the drugs were or where the money is, you went in, got that, and got out? Would that make a difference in all this?

    Mr. TIEFER. That is too colorful for me. Let me go back to the drier procedural question you asked earlier, and I'll leave——

    Both I and Professor Turley cited the fact that the U.S. Attorney's manual itself, the internal Justice Department manual, it's posted on the web, but the manual by which they tell themselves what procedures they're supposed to follow in the Justice Department and the FBI has an entire section, section 2046, about when they come to Congress for evidence. And it specifically says: ''the customary practice when seeking information from the legislative branch, which is not voluntary forthcoming from a Senator or Member, is to route the request to the Clerk of the House or the Secretary of the Senate.''

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    That's the way. Now, when they say the Clerk of the House, the Clerk of the House is a surrogate. The Clerk of the House and the General Counsel of the House report to the Speaker and bipartisan leadership group. That's the roles that the minority and majority have worked out within that framework. It may be satisfactory sometimes, it may not be other times, but it starts as a potentially bipartisan framework and it is not something political.

    This is in the U.S. Attorney's manual. This isn't a political guide to how political things are done. This is a legal guide to how prosecutorial and investigative things are to be done, because of the way papers within the Congress are deemed to be available.

    So was there a proper way to seek these papers? There was. Does asking the Speaker in advance have a role? It does. Following the U.S. Attorney's manual, one consults with the Chamber so that the processes will be proper. Does that stop the evidence from being sought? Absolutely not. It just makes it be done right.

    Chairman SENSENBRENNER. The gentleman from California——

    Mr. SCOTT. Mr. Chairman, may Mr. Fein answer the follow-up question?

    Chairman SENSENBRENNER. Mr. Fein.

    Mr. FEIN. Yes. With regard to searching for cash or instrumentalities of crime, there isn't a Speech or Debate Clause problem. There are elements of comity, but you're not getting into elements of deliberations if you are searching for cash. You don't have to read the documents. It's the requirement that you read every document and file in the office to know whether or not you're identifying something that responds to the warrant that is the intrusion on the Speech or Debate Clause.
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    I want to give a clear example. Suppose we go back to the impeachment proceedings with regard to President Clinton, and in the files of Members on the Judiciary Committee could be evidence or questions they are going to ask witnesses. You would not want to have the FBI of the Clinton administration coming into that Member's office and saying, gee, we think there may be an election law violation, we've got to read through every single document in your file, including the questions you may be asking during the impeachment inquiry, in order to determine whether we need to continue this particular proceeding.

    That is clearly an invasion of Speech or Debate Clause evidence, which would then be in the executive branch's ability to know how to evade or rebut the impeachment prosecution. That is what I think Professor Turley meant in explaining that the Speech or Debate Clause includes more than just what you say on the floor of Congress. It relates to those communications that are indispensable to discharging your functions as a legislator.

    Chairman SENSENBRENNER. The gentleman from California, Mr. Issa.

    Mr. ISSA. Thank you, Mr. Chairman.

    Mr. Fein, you have prepared everything for my few questions. You know, it's interesting to me that it's alleged that J. Edgar Hoover wiretapped or bugged Goldwater's aircraft on the request of Lyndon Johnson because there was no law preventing it at the time. And so he did what the President ordered him to do.

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    Constitutional challenge? Not in the strict sense. Chilling effect on the ability for an incumbent to ever not win reelection? Yeah, I'd say it was. And this body passed laws that make that a crime today, a crime affecting the President.

    It's an interesting question, though, about laws, and I'm going to ask it as someone who came to this legislative body not to pass laws unless absolutely necessary. Do you really pass laws to protect the strict letter of the Constitution?

    We have, and I hope this is appropriately controversial, we have the power to impeach the Attorney General. We have the power to impeach that particular judge who decided that our body, particularly even our own very small police force, had no powers to stop the other two branches.

    Now, I'm not sure that Articles of Impeachment are going to come out today. I think we're a couple shakes short of a quorum for that purpose, although I suspect Members would quickly be here if it was brought by the Chair.

    Chairman SENSENBRENNER. If the gentleman will yield. Not yet.

    Mr. ISSA. Thank you, Mr. Chairman, happy to have yielded.

    Reclaiming my time, my question to all of you, because we are here talking about something that we're not doing on behalf, as Mr. Scott might have said, we're not doing this as a Republican Congress on behalf of a Democrat, we're doing this out of the deep concern that this time it was about criminal behavior, this time this Member of Congress, Congressman Jefferson, was not investigating the President, seeking impeachment, so it seems like there was no attempt overtly to reduce the speech and debate or to in some way attack this body, although they accomplished it.
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    But my question, unless we get a second round perhaps my only question to you is, do we really need a law or should we in fact use the powers we have as a separate co-equal body to provide the appropriate checks and balances of those who have abused clear constitutional guidelines?

    And I will start with Congressman Walker because I admired his work while he was here.

    Mr. WALKER. Thank you, Mr. Issa.

    You will notice that in my testimony I did not specifically call for a law, and I did that consciously. Because as I considered this, I thought to myself, I'm not certain but what a law does not diminish the constitutional authority; that as soon as you place a law of procedures, that that may have a diminishing effect on the very nature of the Constitution.

    I'm not an attorney, but I reacted to it as a politician, just saying, I'm not certain that that's the route to go in this particular case. And what I'm concerned about is that we would tend to have a law that reacts to this particular situation, and yet the precedent being set here may have vastly more extensive implications to it.

    For example, at the Justice Department right now it appears as though they are headed toward trying to create a new circumstance where campaign contributions can be regarded as bribes of Members of Congress. Will we then have a wave of raids on Capitol Hill to look at Members' records to find out whether or not they have taken campaign contributions that relate to their legislative duties? If this precedent is allowed to stand, it seems to me that that's a danger going forward.
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    Again, I say that not as a lawyer, which I'm not, but as a politician who just kind of reads the tea leaves and says these are concerns that I think Congress ought to be very aware of.

    Mr. ISSA. I want to give everyone else a chance to answer, but I will interject that perhaps they've listened to special orders late in the night in this body talking about the President's taking of money from various oil companies and the assertion that somehow because they had a campaign contribution it was the equivalent of a bribe. Perhaps we gave the Attorney General's office exactly that wrong-minded idea.

    Professor Turley.

    Mr. TURLEY. First of all, I want to say that what Congressman Walker just said is absolutely true; that we have to be careful that we don't affirm a view that there's not a preexisting duty. But, in fact, there are other statutes that amplify and create procedures for existing constitutional rights.

    What I would encourage you to do is not just pass this law but to make it clear that you are not conceding this point; that in fact you believe you have the inherent authority; but this, like those other laws, is designed to create procedures and to amplify the existing constitutional right. And I think in that sense you are right.

    But I also want to encourage you that the Framers gave you the ability of self-defense. You have appropriations authority, oversight authority, and you have ultimately the impeachment authority. And I don't consider that to be such a trivial question. I think that when you have an offense that strikes at the separation of powers, you are talking about something that threatens the very stability of the system. You have those powers, and I hope that you will use them. Because the Framers expected that you would jealously protect your own authority. Because I promise you, the other branches are not likely to do so with as equal vigor.
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    Mr. FEIN. With regard to a statutory approach, I think the necessary and proper clause, article I, section 8, clause 18, was calculated to accomplish precisely what a statute would do. That empowers Congress to enact any law that's appropriate for the execution of any power belonging to any branch of Government, executive, legislative, or otherwise.

    An example in my judgment of the use of the necessary and proper clause was the passage of the Foreign Intelligence Surveillance Act, which has been so much discussed. That is, whether or not the President might have inherent authority to gather foreign intelligence wherever he wanted if Congress said nothing; that Congress, after holding exhaustive hearings, said we want to regulate the gathering so it doesn't encroach on fourth amendment rights. The same thing would be true by this statute.

    And I think that's superior than a case-by-case approach under the Constitution that will take years and years of litigation, up to the Supreme Court and back again, before there is anything that even closely resembles the clarity of a statute. It's best to decide now.

    With regard to the alternate mechanisms that Congress holds to hold the executive branch accountable, they are there, as Professor Turley announced. But the greater the flexibility, the more likely sensible uses will be made. An impeachment proceeding really is totally disproportionate to an issue of this sort unless it remains systematic. A statute seems to me the first place that something ought to be tried before you resort to more drastic remedies.

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    Chairman SENSENBRENNER. The gentleman from Maryland, Mr. Van Hollen.

    Mr. VAN HOLLEN. Thank you, Mr. Chairman, and thank all of you for your testimony. And, Mr. Chairman, I was pleased to hear you say you are also intending to call the Attorney General as well as Mr. Mueller because I'm interested in what they have to say. And I also think at these hearings it's important to have both sides represented as much as possible. I hope even the next panel you mentioned we will have both views. Far be it from me to defend the executive branch, but I just think in terms of getting all the facts out and a full range of views, that would be helpful to everybody.

    Professor Turley, you mentioned it is a catharsis, but I do think it's important to very briefly list on page five of your testimony the number of examples of overreaching by the executive branch where there's been a total lack of oversight by this Congress: The torture memorandum, detainees, enemy combatants, signing statements, domestic surveillance, data mining operations.

    All important issues. And Members of this Committee may come down on different sides of those issues, but we should still have the oversight and the hearings so we can get the facts out and let people make a reasoned judgment about what the Administration is doing.

    So, again, I'm pleased that we're having oversight on this issue, but I think there are so many other issues important to the American people that demand greater oversight.

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    Now, if I could ask you, Mr. Fein, with respect to the idea of having a statute to address this issue. A statute passed by the Congress, of course, is subject to a veto by the President. And it does raise the question that Mr. Walker raised, and I was thinking myself, doesn't this in some way, couldn't this be interpreted in some way as an admission that the Congress does not have the constitutional authorities that you talked about?

    And what would happen if the President vetoed it and Congress then failed to override the veto for some reason? Would that not be interpreted as a sort of surrender of some of our claimed constitutional authorities?

    Mr. FEIN. I don't think so. I think Congress can make clear that they are enacting the statute out of an excess of caution to avoid the delays involved in litigating with regard to the constitutional standard, and making clear that you're not yielding any argument that the Speech or Debate Clause on its own wouldn't have invalidated the warrant that was signed by Judge Hogan.

    With regard to an executive branch veto, I suppose that's possible, but that's part of the legislative process. At least the President, then, would be open and clear to the American people as to what kind of authority he wanted to grant his executive branch and could be held accountable accordingly.

    It seems to me, however, that the bipartisan support for this hearing suggests that a veto would be very unlikely, especially since the Vice President, Mr. Cheney, has voiced some objection or qualms about what was done here, and he seems to have substantial influence in the White House.
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    Mr. VAN HOLLEN. All right. Now, as I understand the testimony of Professor Turley, and I don't know if you share the view, but the actual search warrant itself was deemed to be—you judged that to be constitutional. The question has been the means and the scope of the documents looked at.

    I'm interested whether you all share that view, but with respect to the proposals, I understand you would prohibit search warrants for documents in legislative offices, period?

    Mr. FEIN. Yes. And that's why I think a search warrant for documents, on its face, is unconstitutional. Because you have to read all the files to know whether you have hit upon the document responsive to the warrant.

    Mr. VAN HOLLEN. Well, let me ask you this hypothetical, though, because there are many forms of documents. What if you had a search warrant that specified specific documents that the FBI, or whoever it was, had good reason to believe were in a congressional office. And let's further presume that maybe it's one or two documents and they also believe there was a fear that if they announced in advance that that document would be missing.

    Let me give you a hypothetical. In the Congressman Duke Cunningham case, there was apparently a napkin or a piece of paper that specified specific earmarks, and next to each earmark specified the amount of bribe that would be given in exchange. Let's say they believed that that document was in Congressman Cunningham's office and that they believed there was a real danger that if they provided advance notice that it would disappear, and you went to a Federal judge.
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    Under your statute, that would be prohibited even if you were looking for one document. Is that your intent? Under that circumstance, should we allow, under that kind of circumstance, should we allow for a search warrant of a congressional office?

    Mr. FEIN. If you're talking about something that can be described in a way that enables it to be searched without reading all the files, then there is not a problem. But ordinarily a Member isn't going to put a special file and say this particular paper relates to the bribe or the money I've received. And the only way that you can determine whether or not a document is responsive to the warrant is reading a lot of files that aren't responsive because you don't know which one you've come upon or whether you've exhausted the total number.

    That's the difficulty. If you are talking about some mosaic or cuneiform which isn't in the file, then you don't have that problem because you don't need to read all those documents to know whether you're looking at cuneiform. That's why I think the hypothetical you've raised really is not going to raise a problem if it's written on a napkin that isn't mixed in files which couldn't be readily separated.

    Mr. VAN HOLLEN. Well, it could be on a separate piece of paper that looked like everything else.

    Chairman SENSENBRENNER. Professor Turley.

    Mr. TURLEY. Yes, I never disagree with Bruce, because I usually find out later I'm wrong, but I'll disagree just slightly here, and I'm not sure it is a disagreement.
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    But I believe that a search would still be inappropriate the way it was conducted here, even if you know that there is physical evidence in an office. And I think that Professor Tiefer actually has addressed this as well.

    There is a way you can do it, and how we do things in our system means a lot. So even if you have the napkin with the bribe list on it, what they should do then is to go to the House of Representatives and secure the material so there is no danger it will be lost and then work through the legislative branch to get it. That's how it's been done throughout our history. There's never been a problem that preexisted. So how we do it.

    And when you mentioned my position as to the warrant, my point is that there was clearly probable cause here. That is not an issue. Finding 90 grand in a freezer gives you a pretty good basis for probable cause. And once you do that, most offices and dwellings and places that you frequent fall within that gambit. So probable cause is not a question. Their interest in the material is not a question. Even if it's redundant, according to his defense attorneys, they believed that in fact the Government already had much of this material. But even if it's redundant, they still have an interest in getting it. It's a question of means.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    For what purpose does the gentleman from Texas seek recognition?

    Mr. GOHMERT. Mr. Chairman, I ask unanimous consent to just make a comment about the warrant that I think has been wholly missed here.
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    Chairman SENSENBRENNER. Without objection.

    Mr. GOHMERT. You guys are great, and I appreciate your intellect, as well as all the experts out there in the media, but it seems that everyone has presumed that this warrant had some protections built into it. But I would humbly submit to you this warrant has absolutely no protections built into it. It is a form warrant, and the only addition is the judge wrote in: ''the U.S. Capitol Police are directed'' I guess that's the proper verb, but ''Police are directed to provide access to the property.''

    But it's a form warrant. Over here in the affidavit it says ''I have been informed by the prosecutor overseeing the investigation in this matter''—obviously hearsay—''that they have decided to adopt special procedures.'' but when I have had a warrant as a judge that required special procedures, normally I set them out. This judge just simply says ''you are commanded to search for the person or property specified.''

    There are no safeguards in this warrant. He says go have at it, without any assurance that any privilege will be afforded anything.

    Thank you.

    Chairman SENSENBRENNER. Thank you very much. I'd like to thank all of the witnesses for their very relevant testimony. This is a constitutional issue that is a matter of great concern, and the separation of powers and the checks and balances were put into our Constitution by the framers to make sure that no person or no branch of Government got too powerful. And it was a direct reaction against the notion of parliamentary supremacy where all three functions of Government were combined in the British Parliament, which exists to this day.
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    When I have talked to students about the Constitution, I have said that the Constitution was a reaction against the excesses of the British Parliament. They did not want to have the executive, legislative, and judicial functions being put in the same institution as they are in the United Kingdom. That is why we have three branches. It is also why there were the checks and balances put in, to make sure that the excesses of one branch could be checked by the other two, or the excesses of two branches could be checked by the third.

    It's worked for 219 years. There's no reason to ignore the 219 years of success of separation of powers and checks and balances, and that's why we're here today. And I thank all four of you for shedding light on why we have the separation of powers and the dangers that were employed a couple of weeks ago.

    I'd also like to thank the Members who have participated in this hearing for taking some of their recess time to basically come out here to defend the Constitution.

    So having said that, without objection, the hearing is adjourned.

    [Whereupon, at 11:02 a.m., the Committee was adjourned.]


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