Some very interesting things flow from Byron’s eye-opening report this morning about the tension between Congress and the Justice Department in the Jefferson case — tension that apparently long predates the search of Jefferson’s office.
Most intersting is Congress’s determination to define UNILATERALLY the scope of its protection under the speech-or-debate clause. It has always been the case that each branch of government has an independent obligation to interpret the Constitution. But Congress’s interpretation here is noteworthy for at least two reasons.
1- What has Congress’s beef been about President Bush’s NSA Terrorist Surveillance Program (which most Democrats and the media disingenuously call the “Domestic Spying Program”)? It is this: How dare the president unilaterally — and against the weight of Congress’s seemingly contrary FISA statute — interpret the extent of his authority under Article II? According to prominent members of Congress, the president had an obligation to come to the legislature and work out a mutually acceptable means of carrying out the commander-in-chief’s power to penetrate enemy communications in wartime. Now it seems, however, that when it comes to Congress’s own powers, Congress claims the right to stake out its territory, regardless of the impact on the executive power to enforce the criminal law.
2- At least when the president made his claim, it was consistent with the rulings of the courts. It has long been the law that the president has “delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations,” and every court to consider the matter — even after FISA — has held that the president retains inherent authority to conduct warrantless electronic surveillance to protect the nation from foreign threats. In stark contrast, the Supreme Court clearly held in United States v. Brewster (1972) that the speech-or-debate clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” See also Gravel v. United States (1972) (the speech-or-debate clause “does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases”) (emphasis added).
Given the last five years of strident complaints about the supposedly imperial presidency, I’m just wondering what, say, Senator Reid or Rep. Pelosi thinks about a branch of government that decides to define its own powers regardless of what the courts say.