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Thursday, August 23, 2007

Executive privilege has got nothing on this

Funny how Congress knows how to circle the wagons, too.

Comments (5)

Freedom of information just keeps getting beaten down. It's getting too dark to see. Does Congress want to protect this predator, even if he was once in it's midst. Don't fear the light, embrace it. Let it shine, even if the image it reveals is ugly.

Interesting twist on the classified evidence thing. This time it's the prosecutors who aren't allowed to see it.

I guess they do have a point that there may be sensitive information on that computer. But if that's the case, it need not stand in the way of the investigation. Congress could have their internal trusted tech service take a copy of all the data on the computer, then have civil service staff go through and redact anything extraneous or sensitive on the copy. It wouldn't be fast, and it'd be hard to maintain the chain of evidence, but it could be done.

Its not a "freedom of information" thing. Congress exempted itself from the freedom of informaion act when it was first created. Demoratic majority in both houses at the time.

Nor is it an issue regarding "sensitive information" to be cleaned up by an internal congressional IT department and then disclosed to state court prosecutors in Florida.

Its a Constitutional issue with at least three dimensions.

First, can any state court criminal process -- trial subpoena, grand jury subpoena, or whatever reach into records of the federal government and compel production? Supremacy clause and comity come into play here.

At a seminar 20 or more years ago I had a long discussion with a then sitting 9th Circuit Judge of slightly conservative tilt who was of the opinon that no state court process could compel the production of federal records. Its an interesting question and I know of no decisive case law either way on the question. Nor did Ed Levy.

Could Florida Foley (to distingish him from the WA Foley, former Speaker Tom) or the House Clerk agree to voluntarily produce? Yeah, in theory, but it ain't gonna' happen.

Second Constitutional issue is the Congressional privilege in Article I clause. The DC Circuit just ruled that federal prosecutors cannot use search warrants to obtain physical or documentary evidence from the office of a sitting representative. Thats the case of Rep. Jefferson (D. Louisiana) who had the $ 90 K in cash in the freezer at his house.

If a federal search warrant issued by a federal magistrate judge in DC cannot get federal prosecutors into a Congressman's office, a state court grand jury subpoena isn't going to pry computer records of a former Member loose from the House Clerk.

Finally, there's an arguable Fifth Amendment privilege (or its analog under the Florida state consituton) for the Florida Foley , but frankly thats the weakest of the three Constitutional arguments.

Morally outrageous? Yep. But don't hold your breath waiting for the ecords to be produced.

Thanks for the primer Nonny, but how do we know whether the emperor is clothed? Isn't it possible to exempt this case from those strictures in the interest of Justice?? C'mon Congress, gird up and put this issue to a vote. Waive privilege in this limited instance.

It involves a gang of other Congress Members, raiding in the pages' dorm, both House and Senate. Foley is the tip of the iceberg, so to speak. Wayne Madsen reported most of this over a year ago, and about Foley months in advance of that. Members have no intention of releasing prosecutorial evidence with their names in it. Blumenauer, for example, does not vote to investigate; which also means holding back the evidence that could refute allegations and defend himself. By them keeping silent, you can't possibly think it is as bad as it is.

Charging corruption and graft against Earl is what got me blacklisted at Blue Oregon -- a reasonable person wonders what that gang is hiding.

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