Jefferson's lawyer Robert Trout, for instance, argues that only a lawmaker can make the decision as to whether a document is protected under the Constitution's Speech or Debate clause. This would preclude law enforcement from seizing anything that might possibly fit that description, making the FBI's search of Jefferson's office altogether unconstitutional. Hogan apparently didn't buy that argument at all, according to the account of the hearing in Roll Call:
At one point, Hogan asked Trout whether a search of a lawmakerâs office would be unconstitutional if law enforcement officers thought he or she was hiding five kilos of cocaine in a drawer with privileged materials in it. Trout responded that âYou donât have to look at a document or any document to figure out if itâs cocaine.â
Hogan then asked about âledgers showing evidence of drug trafficking.â Trout suggested those documents would be privileged, and thus a lawmaker could not be compelled to turn them over.
The lawyer representing the House argued a similar line, but was even more bold in separating the rights of lawmakers from everyday schmoes who don't have the safe haven of a Congressional office in which to hide their drug trafficking ledgers:
Kerry Kircher readily acknowledged that Members of Congress are granted extra rights in criminal cases that ordinary people are not given, but that this was a very reasoned decision made by the Founding Fathers during the constitutional convention in the late 1780s.
âThe reason that [protection] does not apply to the other members of society is that the Speech or Debate Clause does not apply to other members of society,â Kircher said. âThat is a function of the decisions made by the Madisons, the Hamiltons and the Franklins more than 200 years ago,â he said.
To which the DoJ said, "bull":
Roy McLeese [of the U.S. attorneyâs office in the District of Columbia] claimed that Congress, through Jefferson and the House counsel, was trying to assert a special privilege not granted to the White House or the judiciary, and that any such argument was flawed. âIt runs beyond anything the president has put forth,â McLeese said. âIt runs beyond anything the judicial branch has put forth.â
We can expect Hogan's opinion sometime soon, reports Roll Call. I'm looking forward to it -- it should make for good reading.