At the Founding, Thomas Jefferson and his ally James Madison famously argued that Article I, Section 6 did not go far enough. As Madison explained, in America sovereignty resided in the people, not in Parliament or Congress. The entire sovereign citizenry, and not just congressmen, deserved the right to speak and debate freely, without fear of civil or criminal liability for expressing their political opinions. Backed by Jefferson, Madison helped draft the First Amendment so as to extend this narrow freedom of speech beyond the Capitol. A few years later, Madison (again backed by Jefferson) famously argued that the amendment meant what it said: All Americans had a right to speak freely, and thus the Sedition Law of 1798 (which criminalized certain expressions of opinion) was unconstitutional. This is the view that has prevailed in the court of history, and in the Supreme Court.
But it is a huge leap from absolute freedom of speech to absolute freedom from search. Under the Free Speech Clause of the First Amendment, there is no general right to shield one's office entirely from any and all criminal investigations. Why should we read the Free Speech Clause of Article I any differently? Since there is no evidence that William Jefferson was searched because of any of his speeches, the Speech and Debate Clause is irrelevant.
This brings us to the Fourth Amendment—which guarantees Americans' right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This might seem more promising for W.J., but today's judges have missed the promise implicit in the original language.
The amendment's words highlight the special need to protect "papers" above and beyond all other personal "effects." Much of the anxiety about the W.J. search focuses on the risk of abuse if executive officials are allowed to rummage through a congressional office—which may be filled with documents unrelated to the criminal investigation—and may contain mountains of confidential material concerning W.J.'s constituents and colleagues. Paper searches are different from, say, drug searches. To test whether a suspicious powder is contraband, investigators can do an unobtrusive litmus test. But to see whether a particular paper is relevant to a criminal investigation, investigators often have to read the paper itself—thereby imperiling privacy.
At the Founding, English judges were particularly hostile to "paper searches." (One landmark case involved the rifling of Parliament member John Wilkes' private papers in his residence.) But today's judges have been less protective of papers so long as the search was authorized by a judicial warrant (as was the William Jefferson search). This overconfidence in warrants would have disturbed (Thomas) Jefferson's generation.
A decade ago, I argued in the Harvard Law Reviewthat special safeguards above and beyond warrants should apply when there is a particularly high risk that various papers will implicate confidential information of innocent third parties—as is likely when a newspaper office is searched, or an attorney's office, or a priest's office. I suggested that such searches should be conducted by special judicial masters or magistrates, who would prevent roving executive eyes from snooping into papers that are irrelevant to the investigation at hand. But so far, courts have not generally required such special safeguards and neither has Congress. So, here, too, W.J. may be out of luck.
Finally, let's consider issues of constitutional structure and etiquette above and beyond the naked constitutional text and original intent. Not all constitutional privileges are textual. For example, executive privilege has a proper place in our law, even though no text clearly defines it, and it is widely agreed that a sitting president enjoys immunity from ordinary criminal prosecution, even though no clause says this explicitly.
The functional argument for Capitol-complex search-immunity thus pivots on the risks of executive overreaching and intrusion into legislative privacy. These risks would be equally relevant if the FBI had searched W.J.'s home computer and home office, yet none of his allies seems to think that his home was categorically off-limits. (One could argue that the Fourth Amendment creates special protections of the Capitol building itself because it speaks of the right of "the people" to be secure in "their … houses" and the Capitol is the "house" of "the people"—but this will strike many as mere wordplay.)
Ultimately, if we want to consider the search of W.J.'s office as uniquely impermissible, we are left with a blunt intuition about the uniqueness of certain physical spaces; a separation of spaces rather than separation of powers. Various congressional barons insist that they are the lords of their castle: Congress must be the master of its own building—just as courts have special powers over misconduct in the courtroom itself—and just as special rules apply on embassy grounds or in church sanctuaries.
This crude territorial notion seems outdated in a world where so much activity occurs in cyberspace. (Should it truly matter whether W.J.'s computer is physically located in the House or in his home?) But there is an interesting history here that may help explain the intensity of the initial congressional reaction: Beginning with Thomas Jefferson, presidents for more than a century declined to physically appear in the Capitol. Instead, they simply sent written messages to Congress. Yet today, this squeamishness about executives in the Capitol building seems rather quaint. Ever since Woodrow Wilson, presidents have regularly appeared before Congress in Congress' own space. George Washington did so at the Founding—and so did John Adams. Jefferson's disinclination to follow their lead may have had more to do with his dislike of public speaking than with any strong separation of powers principle.
There remains, however, one ominous historical episode that President Bush's advisers would do well to consider. In January, 1642, King Charles I personally entered the House of Commons, along with several hundred soldiers, in search of five members whom he intended to arrest and prosecute. The members, however, had flown the coop. When the king demanded to know where the five had gone, the speaker of the House fell on his knees and replied: "May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here." The speaker "in this place" considered himself bound by the legislature and not the king, duty-bound to side with his branch and against His Majesty.
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