The Bush Administration, expressing fear that a lower court ruling on the constitutional rights of members of Congress will hamper probes of corruption and criminal conduct by lawmakers, has asked the Supreme Court to limit the scope of the Constitution’s “Speech of Debate Clause.” In a case arising out of the investigation and prosecution of Rep. William J. Jefferson, Louisiana Democrat, the Justice Department filed an appeal on Wednesday (U.S. v. Rayburn House Office Building, docket 07-816). The petition and appendix can be downloaded here.
(U.S. Solicitor General Paul D. Clement is disqualified from any role in the appeal; earlier, he had served as a temporary custodian of records seized in an FBI raid on Rep. Jefferson’s Capitol Hill office in the Rayburn Building. The appeal was filed by Gregory G. Garre, a deputy, as acting solicitor general for the case.)
The appeal challenges a ruling by the D.C. Circuit on Aug. 3. A post on this blog describing the decision can be found here.
The petition raises this question: “Whether the Speech or Debate Clause provides a non-disclosure privilege that bars Executive Branch agents from executing a judicially issued warrant in a Member’s office to search for non-legislative records of criminal activity.”
The Circuit Court’s decision allowing Members whose offices are about to be searched to assert a speech-or-debate privilege,  the appeal argued, “means that law enforcement agents would have to depend on the target of a search, perhaps assisted by others, to segregate documents he views as privileged from those he views as unprivileged, before the government could conduct its search. That procedure ignores separation of powers concerns and practical realities concerning the risk of destruction of evidence, and introduces intractable practical problems.”
Because of the timing of filing the petition at the Court, it is doubtful that the case can be granted and heard during the current Term — unless, of course, it were significantly expedited.
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