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Dead Constitution
See other Dead Constitution Articles

Title: MADSEN: CONSTITUTIONAL CRISIS
Source: Wayne Madsen Report
URL Source: http://waynemadsenreport.com/
Published: May 26, 2006
Author: Wayne Madsen
Post Date: 2006-05-28 10:34:21 by aristeides
Keywords: None
Views: 110
Comments: 18

May 26, 2006 -- What if the United States experienced a constitutional crisis and no one reported it? The recent statements by House Speaker Dennis Hastert that the Bush White House was overstepping its constitutional separation of powers bounds by allowing the FBI to storm into a member of Congress' office and then "leaking" Justice Department information to intimidate the Speaker after he publicly complained about the raid indicate that this nation is experiencing a drastic constitutional crisis. The fact that the corporate media is not reporting this crisis is understandable when one considers that social studies (once called "civics") in this nation's education system is relegated to an afterthought and our corporate media talking heads and stenographers have as much knowledge of the U.S. Constitution as anyone who has ever passed a high school GED.

Hastert was joined in his criticism of the White House by the Republican Majority Leader in the Senate Bill Frist and the House Majority Leader John Boehner. When one considers that Hastert is the third ranking constitutional officer of the United States, his stark criticisms of White House unconstitutional behavior (regardless of Hastert's possible involvement in illegal campaign contributions), exceed anything this nation witnessed in Watergate. In that case, we were talking about impeachment, partly for White House-sanctioned break-ins of Democratic National headquarters and Daniel Ellsberg's psychiatrist's office. Never once did House Speaker Carl Albert complain about the Nixon administration trying to break into the offices of congressmen. Nor did Senate Majority Leader Mike Mansfield or House Majority Leader Tip O'Neill ever breach such concerns.

A number of Democrats have welcomed Hastert's sudden realization that the Constitution and the separation of powers clause is now under assault by the unitary fascist executive created by the neo-cons. But some Republicans continue to support Bush. These include the core of the Christian evangelical-Ziocon alliance, most evident by anti-Hastert comments from Senators David Vitter (R-LA) and Norm Coleman (R-MN), respectively.

It is now clear, even to the Republican leadership in Congress, that the neo-cons are an anti-constitutional blight upon our nation. The true and most loyal neo-con agents of influence in Congress have now identified themselves (Vitter, Coleman, Lieberman, Cornyn, Kyl, etc.). It is high time for them and the Democrats to initiate impeachment proceedings against this criminal gang and return this nation to normalcy and democracy. Hastert has it in his power to not only eliminate Bush and Cheney through impeachment, but he can replace them as a caretaker president until the 2008 election. That would be the best outcome in an overall bad situation.

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Begin Trace Mode for Comment # 10.

#2. To: aristeides, robin (#0)

The fact that the corporate media is not reporting this crisis is understandable when one considers that social studies (once called "civics") in this nation's education system is relegated to an afterthought and our corporate media talking heads and stenographers have as much knowledge of the U.S. Constitution as anyone who has ever passed a high school GED.

Perhaps the media isn't reporting the "constitutional crisis" because there isn't one? But there does appear be a lot of pointless posturing.

Here's the search warrant that was executed - http://www.bayoubuzz. com/jefferson_affdavit.pdf

I've read the search took so long because the FBI rather than pack up everything and take it away as they normally would do, was being more "surgical" by doing an on-site real-time evaluation of what evidence actually fit the warrant and was to be siezed.

The warrant itself, along with the $90,000 wrapped in foil found in Jefferson's home freezer (talk about your cold cash), are pretty damning.

So someone help me out here with this "constitutional crisis":

Why is Hastert (a Republican) objecting to a legitimate constitutional search of a Democrat's office.

Why was Bush (a Republican) leaning towards return of the siezed evidence in a legitimate ongoing corruption investigation of a Democrat?

This seems a case of where the FBI was doing their job, effectively and constitutionally (Legislative branch is not exempt from Executive pursuit of criminal investigations authorized by the Judiciary) and the DoJ was backing the FBI against the Whitehouse & Hastert on what seems likely further evidence of Jerfferson's corruption.

This seems a rather stupid battle in which Bush & Hastert have involved themselves.

Yes Bush and the neo-cons have been engaged in unconstitutional acts, but the perps here are not the neocons, and the FBI/DoJ seem well within their constitutional preprogatives investigating demonstrable corruption.

Starwind  posted on  2006-05-28   14:14:11 ET  Reply   Untrace   Trace   Private Reply  


#3. To: Starwind (#2)

Well, what's next? Raiding the house of a Supreme Court Justice? This is a bad precedent.

FBI needs to work with Congress to get a hearing going to expel that member. Hastert is rightfully annoyed that this transpired without his knowledge.

Traficant is a good test case of how something should work. There is an investigation, the evidence is displayed before Congress, who then expels the member, and THEN the ex-member is put on trial. In the same vein, if the President is going to have charges brought against him, he needs to be impeached and removed from office first.

The gotcha is that Bush or any executive can concoct a charge in the future, raid a Congresscritter's office, plant evidence or whatnot and then demand votes by blackmail.

No, the Justice Department should have worked with Congress on this and operated by their rules.

mirage  posted on  2006-05-28   14:24:18 ET  Reply   Untrace   Trace   Private Reply  


#7. To: mirage (#3)

When executing the warrant, the FBI used a "filter team" (this is what took so long) to filter out from siezure any 'Speech or Debate Priviledged' materials, the only immunity priviledge that attaches to a criminal investigation. There is no immunity from criminal investigation, unprecedented or not.

http://caselaw.lp.findlaw.com/data/constitution/article01/21.html

U.S. Constitution : Article I
Section 6. Rights and Disabilities of Members
Clause 1. Compensation and Immunities

Privilege From Arrest

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379

Privilege of Speech or Debate

[...snip...]

Parallel developments may be discerned with respect to the application of a general criminal statute to call into question the legislative conduct and motivation of a Member. Thus, inUnited States v. Johnson, 397 the Court voided the conviction of a Member for conspiracy to impair lawful governmental functions, in the course of seeking to divert a governmental inquiry into alleged wrongdoing, by accepting a bribe to make a speech on the floor of the House of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial. It was this examination into the context of the speech--its authorship, motivation, and content--which the Court found foreclosed by the speech-or-debate clause. 398

However, inUnited States v. Brewster, 399 while continuing to assert that the clause ''must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,'' 400 the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ''influenced in his performance of official acts in respect to his action, vote, and decision'' on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ''Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as inJohnson, for use of a Congressman's influence with the Executive Branch.'' 401 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution. 402

Applying in the criminal context the distinction developed in the civil cases between protected ''legislative activity'' and unprotected conduct prior to or subsequent to engaging in ''legislative activity,'' the Court inGravel v. United States, 403 held that a grand jury could validly inquire into the processes by which the Member obtained classified government documents and into the arrangements for subsequent private republication of these documents, since neither action involved protected conduct. ''While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.'' 404

Starwind  posted on  2006-05-28   14:57:41 ET  Reply   Untrace   Trace   Private Reply  


#10. To: Starwind (#7)

Raiding his office without consulting the Speaker of the House is still bad precedent even if it can be found as being 'legal.' Besides, an opinion that a part of the Constitution is "obsolete" is nonsense given that the Constitution is the highest law in the land. It even says so. When we start ignoring our own Constitution, we have bigger problems than we know. We have an amendment process to take care of such matters.

I had a discussion with a friend of mine not so long ago about "legal" vs "constitutional" vs "right" and used Campaign Finance Reform as the example.

Muzzling people is "legal" because the courts upheld it, yet is is still unconstitutional because the First Amendment says "Congress shall make no law.." and they did. The Supreme Court even acknowledged that, but said that "fighting corruption" trumped the Constitution. Those judges should be impeached.

Its not "right" in any sense of the term anyhow.

This is just bad precedent that takes us further down the slippery slope.

mirage  posted on  2006-05-28   15:12:17 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 10.

#11. To: mirage (#10)

Besides, an opinion that a part of the Constitution is "obsolete" is nonsense given that the Constitution is the highest law in the land. It even says so. When we start ignoring our own Constitution, we have bigger problems than we know. We have an amendment process to take care of such matters.

Oh, please. It isn't obsolete, nor did the analysis say so. It said practically obsolete, ie seldom applicable these days regarding civil suits against members which were more common when the provision was written. But the analysis went on to point out:

It [privileged from arrest] does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379

You further argue without basis in fact or law:

Its not "right" in any sense of the term anyhow.

The execution of a duly authorized search warrant is most certainly right in every sense. Just because it might be the first time a specific congressional office was searched has absolutely no bearing on the law, which attaches to criminal acts and the evidence of the crime itself, not the place where evidence of the criminal act may be found.

And Congress expressly made it a crime for their members to accept bribes (18 U. S. C. s. 201), and SCOTUS held (in United States v. Johnston, 383 U.S. 169 (1966)) that the Speech and Debate Clause does not absolutely immunize members of Congress from prosecution under Congress' very own bribery statute.

SCOTUS further held immunity under the Speech & Debate clause applies only to:

  1. "legislative acts" - those generally done in the process of enacting legislation (United States v. Brewster, 408 U.S. 501, 514 (1971), which includes making speeches on the floor of a House of Congress or in committee, voting on the floor or in committee, contributing to reports entered into the legislative record;
  2. other acts that are "integral" to deliberation connected to legislative acts. (Gravel v. United States, 408 U.S. 606, 625 (1972)).

Otherwise, legislative business unrelated to enactment of specific legislation lobbying, petitioning, constituent meetings, speeches at home, parties, etc are not privileged "legislative acts" and therefore can serve as a basis for prosecution.

Evidence of criminal acts is not immune from search & discovery simply because it is hidden amongst otherwise legitimate "Speech & Debate" material.

And in no case is there congressional immunity from criminal investigation of a particular place whether at home, the office, the restroom, the skybox, wherever - there is no precedent attaching to a "place" wherein evidence is kept, which "place" is irrelevant to the "act" being investigated. There is only congressional immunity of legitimate "Speech & Debate" materials, which legitimate materials were being separated from criminal evidence when Hastert, Jefferson & Bush started squealing like stuck pigs.

Starwind  posted on  2006-05-28 16:14:44 ET  Reply   Untrace   Trace   Private Reply  


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