Crime & Federalism

So held Judge Thomas Hogan - the judge who approved the initial search warrant - in an opinion you can read here.  (Via S.Cotus.)

Addressing the Speech and Debate Clause issue, Judge Hogan writes:

The Court recognizes that the Speech or Debate Clause provides Congressman Jefferson with a testimonial privilege, and further that the testimonial privilege is absolute. Unlike producing evidence in response to a subpoena, however, which is a testimonial act, having one’s property subjected to the execution of a valid search warrant does not have a testimonial component.

Thus, the Speech or Debate Clause’s testimonial privilege was not triggered by the execution of the search warrant.

***

The purpose of the Speech or Debate Clause is rather to protect the independence and integrity of the legislature by not questioning Members of Congress for their legitimate legislative acts. The Fifth Amendment also protects one from being compelled to answer questions. Just as the Fifth Amendment does not protect a person from disclosure of incriminating evidence, the Speech or Debate Clause does not prohibit disclosure of legislative material. Rather, it prohibits a Member from having to answer questions as to his legislative activity. Here, Congressman Jefferson has not been questioned about actions that fall within the sphere of legitimate legislative activity.

Mem. Op. at 14-16 (citations omitted). 

Addressing the separation of powers issue, Judge Hogan notes that Rep. Jefferson's argument is a double-edged sword.  Turning it back on the congressman, he writes:

If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch.  Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Members of Congress to frustrate investigations into non-legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from prosecution. “Our speech or debate privilege was designed to preserve legislative independence, not supremacy.”  Brewster, 408 U.S. at 508. The execution of the search warrant upon Congressman Jefferson’s congressional office did not violate the separation of powers principle.

Id. at 23

Sometimes the people you know means the difference between zero and four years in prison.  Just ask Dallas Austin.

Atlanta record producer Dallas Austin was convicted of smuggling 1.4 grams of cocaine into the United Arab Emirates, and he was sentenced to four years in prison.  Aside from the draconian prison sentence, there was nothing to indicate the Austin's conviction or sentence was unjust.  Yet Orrin Hatch, famous for his tough-on-crime approach to drug offenders, used his power to persuade UAE officials to pardon and release Austin.  Why?

Why would a United States senator from Utah intecede in a drug case involving a drug smuggler from Georgia?  There are two reasons, though neither have anything to do with law or justice.

Reason number one:

[F]ormer Hatch staffer Nancy Taylor ... contacted the senator about Austin.... Taylor, who worked for Hatch on health care issues until 1991, now works [at the same law firm as Joel A Katz].

Reason number two:

Hatch spokesman Peter Carr said he did not know whether the senator and Austin had ever met, but he confirmed that both employ Atlanta entertainment lawyer Joel A Katz. Hatch has written and recorded hundreds of religious and patriotic songs.

There's nothing in official reports to indicate that Austin's release was motivated by anything other than personal connnections.  While I certainly feel sorry for small-time drugs users who find themselves facing huge prison sentences (in countries both foreign and domestic), I am troubled that Senator Hatch would choose to help out in this case.  It smells of someone doing a favor for his friends. 

As public servants, United States senators should not use their office to help out friends; rather they should seek to act in the public's interest.  How freeing someone so enamored with cocaine that he smuggled it into a foreign country is in the public interest escapes me.  What's worse is that Senator Hatch does not have a record of helping drug users escape unjust prison sentences.  If anything, he is one reason drug users in America face UAE-like prison sentences.

Then again, perhaps Senator Hatch will help other Americans held abroad escape unjust sentences.  I'm hopeful, though certainly not confident, that people who aren't represented by Hatch's friends will also receive a blessing from Utah.

You can't fake this level of stupid.  (Via Overlawyered.)

Don't miss this fascinating post at the White Collar Crime Prof Blog addressing ethical lapses by federal prosecutors.  So much for "seeking justice," 'eh?

Steven Dillard has a very interesting post discussing what might have have motivated the Georgia Supreme Court's unanimous anti-gay marriage ruling.  Check it out.

Amber Taylor has this interesting post (be sure to read the comments) exploring that question.

KipEsquire has some thoughts on the abominable ruling here and here.

Judge Alex Kozinski persuasively argues, yes, in a case involving misquoting the record:

In short, I don’t believe that it is appropriate or reasonable for a lawyer to pluck a few words from the middle of a sentence and pretend that they say something very different from what they mean in context.

You can read Judge Kozinski's opinion here.

... does it again.

Steve Yagman is one of the top civil rights lawyers in the country, and he regularly represents people whose constitutional rights have been violated.  I've always admired his legal acumen and even tried getting a job with him while I was in law school.  (He blew me off.)  He also writes on many constitutional issues.  Sadly, it seems Mr. Yagman, who was recently indicted for tax evasion, has allowed his anger to blot the First Amendment from his brain.

After a former cop sent Mr. Yagman a letter expressing glee that Mr. Yagman was indicted, Yagman sued, alleging that the letter caused him emotional distress.  I guess Yagman has forgotten that hurtful speech is nonetheless protected speech.