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Court Rules against FBI Raid of Jefferson Office
From the AP:
The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson's office last year and viewed legislative documents, a federal appeals court ruled Friday.The court ordered the Justice Department to return any privileged documents it seized from the Louisiana Democrat's office on Capitol Hill. The court did not order the return of all the documents seized in the raid.
The raid last May of Jefferson's office, remember, caused a furor on Capitol Hill, provoking the rare alliance of then-Speaker Dennis Hastert (R-IL) and Minority Leader Nancy Pelosi (D-CA), who demanded that the FBI return the documents seized from Jefferson's office.
It seems clear that Jefferson didn't quite get what he wanted here, which was return of all documents seized in the raid. Our legal eagle readers are invited to write in or comment with their reactions or interpretations of the ruling's impact. Are Congressional offices now safe from the FBI's prying fingers?
The introduction to the ruling (pdf) is posted below.
Note: This decision dealt exclusively with the raid of Jefferson's Congressional office. So it shouldn't substantially affect the government's case against him.
Update: Here's some interpretation from CREW, who filed an amicus brief in the case.
Update: Here's the Justice Department's reaction to the ruling, from spokesman Brian Roehrekasse:
“The Department of Justice is pleased that the D.C. Circuit opinion does not find that the search of a congressional office is unconstitutional. We are disappointed with the ruling that requires that a member of Congress be provided advance notice and the right to review materials before the execution of a search warrant. Because of the procedures that were put in place for the execution of the search warrant, the indictment and prosecution of Congressman Jefferson will not be negatively impacted by this decision. The Court of Appeals notes that there is no indication the Executive Branch did not act based on a good-faith interpretation of the law, as reflected in the District Court’s prior approval. The Department of Justice will continue to prepare for trial, scheduled for January 2008, and we are pleased that the D.C. Circuit opinion allows the prosecutors to retain non-Speech or Debate clause documents. The Department will review the decision and evaluate further action.”
From the ruling:
This is an appeal from the denial of a motion, filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking the return of all materials seized by the Executive upon executing a search warrant for nonlegislative materials in the congressional office of a sitting Member of Congress. The question on appeal is whether the procedures under which the search was conducted were sufficiently protective of the legislative privilege created by the Speech or Debate Clause, Article I, Section 6, Clause 1 of the United States Constitution. Our precedent establishes that the testimonial privilege under the Clause extends to non-disclosure of written legislative materials. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995).Given the Department of Justice’s voluntary freeze of its review of the seized materials and the procedures mandated on remand by this court in granting the Congressman’s motion for
emergency relief pending appeal, the imaging and keyword search of the Congressman’s computer hard drives and electronic media exposed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause, but the review of the Congressman’s paper files when the search was executed exposed legislative material to the Executive and accordingly violated the Clause. Whether the violation requires, as the Congressman suggests, the return of all seized items, privileged as well as non-privileged, depends upon a determination of which documents are privileged and then, as to the non-privileged documents, a balancing of the separation of powers underlying the Speech or Debate Clause and the Executive’s Article II, Section 3 law enforcement interest in the seized materials. The question of whether the seized evidence must be suppressed under the Fourth Amendment is not before us.We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents. The Congressman has suggested no other reason why return of such documents is required pursuant to Rule 41(g) and, in any event, 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.
Josh
Zachary
You can bet this is because shooter and his loyal slaves in the GOP don't want it to happen to them. Since they own the courts, they told them what to do. sets the precedent to prevent them from having the same indignity. disgusting
there is no more democracy now
August 3, 2007 10:51 AM | Reply | Permalink
Well, it sounds like they can get and keep non-privileged materials from a congressional office. We will see how they rule on a likely later motion to suppress the evidence from the search. In order to determine which materials are privileged, the court will likely require a privileg log from Jefferson listing which docs are privileged and why.
August 3, 2007 10:52 AM | Reply | Permalink
I'm upset too, oldtree, but I wouldn't go so far as to say that the GOP ordered the court to make this decision.
August 3, 2007 12:01 PM | Reply | Permalink
Interesting. Technically, it looks like DOJ "won" because it doesn't have to return the non-privileged materials. This means that only Jefferson would have standing to seek Supreme Court review, even though the rationale of the majority could have a very serious impact on DOJ's ability to conduct future investigations of members.
this is based on a very quick scan of the opinion.
August 3, 2007 12:05 PM | Reply | Permalink
oldtree @ 10:51 may be correct but I view this as a constitutionally correct call. In fact it clearly shows that Bush's executive branch has over reached again. Perhaps if Bush would try having his minions follow the constitution and the law this wouldn't happen?
In response to nameless at 10:52, I find it difficult to imagine any criminal court using documents for evidence that were acquired illegally, be they priveleged documents or not.
August 3, 2007 12:11 PM | Reply | Permalink
My only question at the moment would be:
Does this in any way strengthen the Executive Branch's claim of privilege?
Not allowing the executive to see the internal deliberations of the legislative branch seems to imply that the executive branch could claim a similar protection. That Jefferson, in any way, could benefit from this ruling disturbs me, that Buch could disgusts me.
August 3, 2007 12:29 PM | Reply | Permalink
Then you should consider naivete as a reason. We have seen numerous court decisions that were ordered from above. Yesterday they admitted they did with the Oxycontin maker. Don't assume that these people have values that we might share, that is how you get stabbed in the back
August 3, 2007 12:31 PM | Reply | Permalink
The motion to suppress the evidence from the search is key now. If the non-privileged evidence gathered during the search is not suppressed, nothing prevents the government from engaging in such a search in the future. If it is suppressed, then there is no point in such searches in the future, as the evidence resulting from them can't be used.
August 3, 2007 12:35 PM | Reply | Permalink
This looks to me like an almost complete win for the DOJ. The warrant provided that two DOJ attorneys and an FBI agent would separate privileged material from unprivileged (i.e. evidence of bribe-taking). The court rules that Jefferson should have been permitted to assert privilege as to particular documents and the issue of whether he was right to do so should have been determined by a judge.
Essentially, the Court remands and directs that the material be sifted by a judge with the non-privileged material that responds to the warrant then turned over to prosecutors.
Not a win for Jefferson. Not a major impediment to future searches for evidence of corruption.
August 3, 2007 12:46 PM | Reply | Permalink
Oldtree, Lindsey: Constitutionally-guaranteed issues of Congressional privilege against criminal indictment while doing their business, etc., has nothing to do with the executive branch; sorry. I too think the court addressed some legitimate issues.
The top-of-my-head concern I have is: How much notice is legally sufficient "advance notice" in this case? I'm picturing a Congressman running papers through a shredder at a feverish pace or something.
August 3, 2007 1:45 PM | Reply | Permalink
I linked to this article a few months ago in another post, but I thought it worthwhile to do again. It's by John Dean, a former council for Nixon and it's an excellent article. It goes into detail about what went wrong in the search of Jefferson's office. It is an especially damning description of the gross incompetence of Gozales, and the main Justice Department. It explains why so many politicians (R and D) were upset about how the search was carried out.
August 3, 2007 2:13 PM | Reply | Permalink
"We are disappointed with the ruling that requires that a member of Congress be provided advance notice and the right to review materials before the execution of a search warrant."
What a hypocrite.
Roehrekasse not only demands that when Congress is investigating the executive branch that the White House get advance notice and an opportunity to review materials, but that the White House may absolutely and unilaterally decide what to turn over and what not to turn over, even though Congress's privilege is expressly set forth in the Constitution and the executive privilege that Bush is claiming is not.
If Roehrekasse really believes this crap, then why doesn't the White House apply the same standards to itself that they are insisting apply to Congress and allow congressional investigators physical access to all executive branch documents (e.g., all the documents in Rove's office) so the congressional investigators can themselves paw through them all looking for the relevant ones?
August 3, 2007 2:36 PM | Reply | Permalink
Correct ruling, right reasoning but Speech and Debate Clause is a BIG stretch!
http://osi-speaks.blogspot.com/2007/08/congressman-william-cash-in-freezer.html#links
August 3, 2007 3:18 PM | Reply | Permalink
This is actually a ruling I find very difficult to understand.
Agents of the administrative branch acted in accordance with the orders of the judicial branch, in incidently serving a lawfully issued search warrant against—and on the premises occupied by—a member of the legistlative branch. The ruling effectively creates a 'special place' where a legislator, as a person of a 'special class' is now accorded the 'special privelege' of deciding in advance what information shall be subject to seizure under such a warrant, in what form and in what place. Not only is the basis for the ruling a tremendous stretch, but it effectively creates a set of special procedures which allow a targeted member of the 'special class' to hide or destroy any evidence of wrongdoing. All with impunity.
This is properly a 4th Amendment issue, notwithstanding the reluctance of this court to review the issue from that perspective, and any alleged collusion by the executive and judicial branches to obtain otherwise privileged information from the legislative branch is properly dealt with by review in the courts, which can offer relief.
Whatever sloppy execution might have been involved in the search of Representative Jefferson's office, and however inappropriate the seizure of documents and materials might be, this decision is without reasonable foundation, inconsistent with governing sections of the Constitution and Bill of Rights, with case law and with statute, and is dangerous.
The FBI acted on orders from the court which issued the warrant. It did not act on behalf of the White House. Whatever is wrong with the administrative component of the Justice Department—and, there is clearly a very great deal wrong—should not be blended with a fundamental Constitutional issue. The wrongful acts of the Attorney General do not merit turning the 'system' on its head and cheering a ruling which is inconsistent and dangerous. Providing prior review by—and a safe sancturary for—members of the Legislative branch is a HUGE step backward.
August 3, 2007 4:25 PM | Reply | Permalink
Michael Lafferty - The 535 or so members of Congress indeed are a special class in these kinds of concerns and always have been, starting with language in the Constitution. And as TEL notes above, Gonzales and his minions (and this little incident was run by the higher ups at the DOJ, you know like AGAG and merry band of Regent Scholars) di,d pull off a completely ignorant ham fisted effort.
August 3, 2007 6:29 PM | Reply | Permalink
Interesting to not that the court wasn't asked to consider the 4th Amendment "
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
It was only asked to decide upon the "Speech and/or Debate" protections allowed congress members.
It would be interesting to see if the current court would consider House and Senate members differently than common folk regarding the 4th Amendment. Considering the ruling for advanced notice, I find it difficult to believe any congressman in the future will have to worry about anything of consequence (even if private, nongovernmental documents) will ever turn up again in a search... in this respect,the court thus actually did rule on the 4th Amendment, even though it stated it didn't... IMHO
August 3, 2007 7:01 PM | Reply | Permalink
Do you mean this sort of language in the Constitution?
"They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
How the court bought the concept that the execution of a valid search warrant, issued by the judicial branch and executed by the administrative branch, violates this provision of the Constitution is beyond me. You conflate your view of the bad conduct of Gonzales and company with a fundamental Constitutional issue. Any redress for such misconduct it not to extend the Consitution to provide special protection for the legislative branch. There are clearly other mechanisms to do so.
This decision is deeply flawed, and should and will be overturned on appeal, as it well should be. Yes, it is inconvenient that it this matter I should find myself agreeing with the administration that there is no special protection afforded Congress beyond what is stipulated in the clause quoted above, nor should there be.
This is, however, a matter of Constitutional principle and not politics. Forget your perceived conspiratorial plot between the courts and the administration, and think about the larger picture.
The decision is simply so far afield from the clause, that one might reasonably presume that these judges were educated at Regents University!
…the exception for offenses classified as felonies
…this matter involved a search and seizure, but NOT an arrest
…there was no restraint of movement, it did not preclude Representative Jefferson from engaging in speech or debate before either the House of Representatives or the Senate, and he was not questioned regarding this matter outside of property controlled by the Congress.
So, how again does this clause apply? And where are the allusions to such special privileges that mere mortals do not receive?
August 3, 2007 8:00 PM | Reply | Permalink