The Hill search and the constitutional conflict

UPDATE 3:40 p.m. President Bush on Thursday ordered that the documents seized in the search of a sitting congressman’s office be sealed for 45 days. No one involved in the investigation, he said, would have accesss to the materials. Presumably, that will provide time for the White House and Congress to try to find some compromise to ease the developing constitutional conflict. Noting the interbranch dispute, Bush said that “it is clear these differences will require more time to be worked out.” In the meantime, the documents will be in the custody of the U.S. Solicitor General, whose office is not involved in the investigation. The President’s statement can be found here.

The constitutional challenge to the FBI’s unprecedented search of the office files of a sitting member of Congress is taking a more definite shape, based on court documents that have now become available. Rep. William Jefferson, the Louisiana Democrat whose offices were scoured for 18 hours by FBI criminal investigation agents last weekend, has opened the challenge with filings in U.S. District Court in Washington. The documents indicate some of the issues that would be before the Supreme Court, in the event — which seems increasingly likely — that the dispute reaches the Justices.

Jefferson has filed a motion asking Chief Judge Thomas F. Hogan to “order the return of all items seized from the congressional offices.” The motion claims a violation of the Fourth Amendment search clause, a violation of the doctrine of separation of powers, a violation of the congressman’s “absolute immunity” under the speech and debate clause of the Constitution, and a violation of federal criminal rules of procedure. The motion can be found here, and the memorandum in support can be found here. The memorandum lays out the claims in detail.

In addition to seeking the return of paper files and a computer hard drive taken by FBI agents, Jefferson asked the judge to issue an immediate order barring the FBI and the Justice Department from any further review or inspection of the items seized, requiring the sequestration and securing of the seized items, and requiring a report to the judge “detailing which documents have been reviewed and what steps have been taken to sequester the documents from further review pending further order of the court.”

The warrant signed by Judge Hogan authorizing the search, including the supporting affidavit, can be found here. It is a lengthy document, and in the form that appears, substantial parts are redacted. But of unusual interest in the paper are pages 74 to the middle of 82, laying out the “special search procedures” the FBI agents planned to follow in order to filter out “information that may fall within the purview of the Speech or Debate Clause privilege,” and to “minimize the likelihood that any potentially political sensitive” items, not responsive to the search parameters, would get into the hands of the prosecuting team. Rep. Jefferson has challenged this Executive Branch review of a privilege that he contends only a member of Congress can understand and exercise.