Partial violation of congressman’s rights found
on Aug 3, 2007 at 1:20 pm
The D.C. Circuit Court ruled on Friday that the Justice Department and FBI violated the constitutional rights of a member of Congress when it seized paper files from his Capitol Hill office during a bribery investigation, finding that at least some of those documents involved “legislative material.” The case has appeared to be destined for the Supreme Court in a major test of separation of powers doctrine. The Justices have never ruled on the constitutional issues at stake; the search of the lawmaker’s office was the first ever by the Executive Branch of a sitting member of either House or Senate.
Such “privileged” material is protected by the Constitution’s Speech or Debate Clause, the Court found in a 2-1 ruling concluding that FBI agents went too far in carrying out a warrant in an overnight search on May 20 last year of the legislative office of Rep. William Jefferson, Louisiana Democrat. (The Court’s opinion can be found at the opinion page, under Friday’s date, at this site.)
Since a dispute arose in federal courts over the constitutionality of the FBI search, the Justice Department has obtained a 16-count indictment of Rep. Jefferson on charges of bribery, racketeering, money laundering, obstruction of justice, and other crimes. The Circuit Court made clear that it was not now ruling finally on the impact on that criminal case of its decisoin Friday. It said that no one had argued that the constitutional issue over privileged documents had been made moot by the indictment. Failing to resolve the constitutional issues until after the lawmaker has been tried, it said, “would, if the Congressman is correct, allow the Executive to review privileged material in violation of the Speech or Debate Clause.”
The Justice Department, in this statement by a spokesman, said that “the indictment and prosecution of Congressman Jefferson will not be negatively impacted by this decision.” It said the criminal case is scheduled for trial next January. It said it was weighing its options as to “further action” in response to Friday’s ruling.
Rep. Jefferson’s lead counsel, Robert Trout of Washington, said in this statement that the Congressman would “raise additional legal challenges to the overreaching by the government in this case.” It was not clear whether such added challenges would be confined to the criminal trial, or whether there might be an appeal to the Supreme Court at this stage on the part of the Circuit Court opinion denying an immediate return of all of the seized materials.
Only part of the materials seized from the lawmaker’s office, the Circuit Court found, were protected by the Constitution. Those were some of the paper files; looking at them allowed the FBI agents to see legislative materials, it said. But the Court went on to rule that electronic material obtained in an “imaging and keyword search” of hard drives of computers in the office “exposed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause.” The government now has in its possession “complete copies of every computer hard drive” in the legislative office of the Louisiana legislator, it noted.
With its finding of a violation of the Clause as to some of the paper files, the Circuit Court majority said it would leave to a federal District judge on remand whether Jefferson is entitled to have returned to him “all seized items, privileged as well as non-privileged.” That issue turns, it added, on which paper documents are now found to be privileged and thus must be withheld as evidence and returned to Jefferson, and which of the non-privileged electronic items might yet be used as evidence after the trial judge balances “separation of powers” issues between the lawmaking prerogatives of Congress and the prosecutorial prerogatives of the Executive Branch.
While saying that it was leaving open the possibility that Jefferson could claim that his legislative office has been disrupted by not having original versions of the electronic items, and thus he was entitled to have those back, it appeared to be very skeptical as to any such claim. “It is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment against him while this appeal was pending,” the Court said.
The majority also declared that it was not deciding “whether the seized evidence must be suppressed under the Fourth Amendment” as an unreasonable search or seizure. That question, it said, “is not before us.”
The majority opinion was written by Circuit Judge Judith W. Rogers and was joined by Chief Judge Douglas H. Ginsburg. Circuit Judge Karen LeCraft Henderson, joining in the result only insofar as it denied Jefferson’s claim to a return of all of the materials, said she would have ruled that the search of a congressional office during a criminal probe was valid, so there was no Speech or Debate Clause violation.
The case apparently will be returned (if not appealed to the Supreme Court by one or both sides) to Chief District Judge Thomas F. Hogan, who authorized the search of the congressional office, and who has been supervising the post-search filtering of the seized materials. The Circuit Court ordered that filtering in a ruling in late July last year. The Justice Department in the meantime has temporarily frozen its review of the seized items.
The majority opinion laid down the firm principle that the Speech or Debate clause insulates a member of Congress not only from being questioned personally about the legislative activity, but also from having a forced disclosure outside of Congress of legislative documents. In other words, it said, the legislative privilege under the Clause also includes a “non-disclosure privilege.” The Circuit Court relied in part on one of its own precedents, Brown & Williamson v. Williams in 1995, but Friday’s decision appeared to be a significant expansion of that ruling’s scope — an expansion that drew a protest from Circuit Judge Henderson, dismissing the prior ruling as to Speech or Debate Clause as mere dicta.
The Court rejected the District judge’s conclusion that the Speech or Debate Clause was not implicated by the search of Jefferson’s office because when the FBI took the documents it was not compelling any testimony in violation of a privilege.
The non-disclosure privilege, the majority said, seeks to “prevent intrusions in the legislative process” and disruption of that process by disclosure of legislative material, “regardless of the use to which the disclosed materials are put….The ban on compelled disclosure is absolute…, and there is no rason to believe that the bar does not apply in the criminal as well as the civil context.”
It added that, although the 1995 decision involved a civil lawsuit, the “discussion of the Speech or Debate Clause was more profound and repeatedly referred to the functioning of the Clause in criminal proceedings.”
In the case of the search of Jefferson’s office, the majority said, “FBI agents had to review all of the papers” in the office, of which some “surely related to legislative acts. This compelled disclosure clearly tends to disrupt the legislative process…’
