UPDATE Tuesday July 11: Rep. William Jefferson, Louisiana Democrat, on Tuesday formally noted that he would appeal a District judge’s ruling rejecting his constitutional challenge to an FBI search of Jefferson’s Capitol Hill office. The appeal will go to the D.C. Circuit. In the meantime, Jefferson asked the District judge to stay his ruling while the appeal proceeds. The legal memorandum supporting the stay request can be found here.
The chief U.S. District judge in Washington, D.C., on Monday upheld the FBI’s authority to carry out a search warrant of the congressional office of a member of the House, rejecting a constitutional challenge by the lawmaker and by House leaders. “The search…was constitutional, as it did not trigger the Speech or Debate Clause privilege, did not offend the principle of separation of powers, and was reasonable under the Fourth Amendment,” Chief Judge Thomas F. Hogan wrote. This apparently was the first criminal investigative search of a member of Congress’ office since the adoption of the Constitution.
The judge ruled that the FBI could begin immediately going through the computer hard drivers and papers that federal agents had taken in May from the office of Rep. William Jefferson, Louisiana Democrat at the center of a bribery investigation. Jefferson’s lawyer, however, plans a prompt appeal, and may seek a stay in the meantime. Whether or not this historic constitutional confrontatin ultimately reaches the Supreme Court may depend, at least in part, on whether the House and the Justice Department are able to work out a compromise protocol to govern any future such searches.
Judge Hogan’s order can be found here. and the 28-page memorandum giving his rationale can be found here. Hogan is the same judge who issued the search warrant that agents carried out in an overnight search on Saturday, May 20, barring the congressman’s lawyer and a House lawyer from the office while they gathered up two boxes of papers and hard drives from each computer in the office.
After Jefferson had gone to court to challenge the search, and House leaders of both parties strongly protested what they called a “raid,” President Bush ordered the documents sealed off from the FBI for 45 days. That time expired on Sunday. Unless Hogan’s release order is blocked temporarily, either by him or the D.C. Circuit Court, the FBI will start using a “filter team” to sort out documents that may be legislative materials to protect Jefferson’s legislative prergoatives, if a federal judge finds they are privileged..
Jefferson has not yet been charged with a crime, but one of his former staff aides has pleaded guilty to bribing and conspiring to bribe the congressman. A similar guilty plea came from the president and chief executive officer of a Louisiana communications firm.
The congressman, with the support of House leaders, asked the judge to order the return of the materials to him, and to bar the FBI from examining them. The judge denied the return request, and found to be moot the plea to keep the FBI away from the files. Hogan did concede that the unprecedented search raised serious constitutional questions, but he proceeded to answer all of those questions in the FBI’s favor.
In the key part of his ruling, the judge drew a distinction for Speech or Debate Clause purposes between a subpoena and a search warrant, when the target is a member of Congress. Producing evidence in response to a subpoena, Hogan said, is a testimonial act, and the Clause provides an absolute testimonial privilege. Having a member’s property subjected to execution of a valid search warrant, however, “does not have a testimonial equivalent,” so the Clause’s privilege was not triggered by the warrant’s execution.
“Congressman Jefferson was not made to say or do anything. In fact,…he was not even present at the search….[T]here simply was no compulsory testimony to trigger the privilege.”
The judge went on to conclude that the search itself did not interfere with Jefferson’s legislative activities. “Congress’ capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants, which are only available in relation to criminal investigations, are subject to the rigors of the Fourth amendment, and require prior approval by the neutral third branch of government.”
The fact that some privileged material was “incidentally captured by the search,” the judge found, “does not constitute an unlawful intrusion.”
As to the House leaders’ argument that even a federal court could not review the seized materials to determine if the legislative privilege applies, the judge said “the claim…that the Constitution does not allow a document-by-document review by the judiciary fails.”
The judge defended his own decision to issue the warrant, rejecting the House leaders’ implied suggestion that it would be easy for the Executive Branch to get a warrant from a judge to search legislative offices if this one were upheld. That, Hogan found, was “a gross trivialization of the role of the judiciary. A federal judge is not a mere rubber stamp in the warrant process, but rather an independent and neutral official sworn to uphold and defend the Constitution.”
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