Court Rules against FBI Raid of Jefferson Office

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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.