SCOTUS on Jefferson raid - FBI search was illegal - good news?

This will be short, I just saw that the Supreme Court just declined to review the DC Court of Appeals ruling on part of the William Jefferson brouhaha.

From the NYT:

The ruling that the Supreme Court declined to review held that the F.B.I.’s use of a "filter team" to examine the evidence from the Congressman’s office to determine what was clearly legislative, and therefore out of bounds, was not adequate to protect Congress’s constitutional right to operate without interference from the executive branch.

It only applied to the paper searching, as far as I can tell, so Jefferson is not cleared. My interest in this is not in Jefferson, however, but what this might mean for the unitary executive theory.

I'll preference this quick little analytical thought by saying I'm not a legal type, I'm a scientist by trade, so this will be more "my thoughts" than an actual analysis.

This particular aspect of the case was a separation of powers issue. The Appeals Court ruling held that the FBI search was illegal. So if the Supremes declined to review it that means they are not necessarily going to go whole hog into the unitary executive bog that many fear they will do if given the chance over FISA and/or the Justice Dept firings.

Given especially that this case was essentially giftwrapped for the SCOTUS to take this issue on and rule in favor of the admin (potentially legal gray area, not directly to do with hot-button issues i mentioned above, and taking down a dem), the Court's declining to even review this question leads me to believe there isn't enough support yet among the Justices to bow to Bush on this idea.

It seems like there is a great fear to try and bring things like the FISA suits and Justice Dept Attorneys General firing shenanigans before the Court because they would likely set precedent for the unitary executive idea. This decision could be a signal that we don't quite have to fear this yet.

I could be being a bit too hopeful and not sharp enough to really understand the meaning here behind the Court's refusal to review, but I'd really like this to be a good sign. Hopefully one of our more legally-minded FPers will take this up.

UPDATE: Thank you all for input. I definitely jumped the gun on this one. I do know enough about the SCOTUS to know that one single (and relatively ambiguous, like this) move by them hardly a snowstorm makes and should've remembered that before I got all hyped up.

•  House showing spine - SCOTUS not folding

  Am I crazy in being hopeful?

  by eco d on Mon Mar 31, 2008 at 11:05:47 AM PDT

•  Nope.

  . So if the Supremes declined to review it that means they are not necessarily going to go whole hog into the unitary executive bog that many fear they will do if given the chance over FISA and/or the Justice Dept firings

  A denial of a writ of certiorari just means that there weren't four Justices interested in reviewing the case; it is not a decision on the merits.  

  Really: it means there weren't four justices believing that there would be a fifth interested in overruling it.

  by Adam B on Mon Mar 31, 2008 at 11:13:17 AM PDT

  •  Yup

    One can drive oneself crazy trying to read too much into certiorari denials.

    by The Honorable Freddie on Mon Mar 31, 2008 at 11:16:42 AM PDT

    •  Fair enough.

      by eco d on Mon Mar 31, 2008 at 11:18:22 AM PDT

  •  Right, sorry, that's what I meant

    My thought was that there must be big enough lack of confidence in support of the unitary executive idea within the court that it wasn't seen as worth the effort to push decide this on the merits.

    by eco d on Mon Mar 31, 2008 at 11:17:59 AM PDT

    •  You are overthinking it

      They don't want the floodgates open at a point where there are better than even odds of a Dem president.

      by MrMichaelMT on Mon Mar 31, 2008 at 11:19:15 AM PDT

      •  Not a unitary executive issue

        The theory of the unitary Executive is that all branches and agency have to move in total lockstep with Presidential will and Congress, for example, can't set up agencies that are within the Executive but operate too independently of Executive control.  That's kind of lowbrow summary.  The theory of the unitary executive is not actually supposed to be that the Executive and its agencies are free from following the constitution, but just that Congress can't, for example, make a position that can't be fired by the President or an entity that is not subject to regulatory control by the President.

        The issue in this case, though, was whether or not the Congress (which isn't a part of the unitary Executive even if you buy the unitary Executive theory) has a prior right to assert legislative privilege as granted to it by the Constituion before the unitarians in the Executive grab all their materials.

        by Mary2002 on Mon Mar 31, 2008 at 11:32:05 AM PDT

        •  But the fact that they didn't hear it

          Says nothing about "unitary executive." They simply dodged a political issue because some of their Republican friends probably didn't want the hassle.

          by MrMichaelMT on Mon Mar 31, 2008 at 01:32:22 PM PDT

•  Don't misinterpret

  The court refused to take the case. That may just mean that two of the Conservative 5 didn't want to decide on something that political. With Roberts (who narrows every question to an absurd count of angels on the head of a pin) knows how to duck and weave, too. Remember, there are a lot more crooked Republicans that this could hit.

  by MrMichaelMT on Mon Mar 31, 2008 at 11:18:31 AM PDT

•  But delving behind the facial denial of cert

  you have to keep in mind what is at issue.

  The FBI basically made the raid that gave them direct access to legislative materials without Jefferson having any input on what might or might not be privileged.  

  If the FBI had gone in and done a sequestration of materials and then had a process where Jefferson and his counsel could first review (without ability to destroy) documents and information, then make a filing to the court (which might have been required to be ex parte the way that often Exec assertions of state secrets are) to say "here is what we think is covered by legislative privilege" before the FBI pawed through it, then it's very likely IMO that things would have gone a different way.  

  But the failure to give a member of Congress the same abilities to assert privilege over things that would unquestionably have been subject to privilege (he has to have had legislative privilege materials in his office) before they were taken by the Executive is a cause for concern.  If there had been an effort at accomodation with seizure and sequestration, the appellate response might have been very different.   It would be a pretty bad precedent, though, to allow unchecked, unfettered Execuive branch rights to kidnap disappear torture obstruct perjure oh well, at least from the list we do get "checks" on rummaging through legislative materials without a prior right to assert privilege.

  Not necessarily a great day in the justice anals, but not a big deal in the end.  The cash in the freezer isn't thrown out. ;)

  by Mary2002 on Mon Mar 31, 2008 at 11:27:29 AM PDT

  •  Good Points

    Although Jefferson is no choir boy, it is important that the Emperor..er..well..for now President...can't just harass the Roman Senate...er...I mean U.S. Congress...whenever he sees fit.

    by kingfishstew on Mon Mar 31, 2008 at 11:44:58 AM PDT

•  Cert could have been denied for

  several reasons, some having nothing to do with whether there was a majority to overturn the Circuit Court. Having said that, it is good that the Circuit Court's decision remains on the book and can be used as precedent.

  by Gary Norton on Mon Mar 31, 2008 at 12:37:25 PM PDT