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Well, here's a clear verdict on this morning's appeals court opinion on the FBI's raid of Rep. William Jefferson (D-LA). It's a great day for corrupt lawmakers, says Melanie Sloan of Citizens for Responsibility and Ethics in Washington. CREW filed an amicus brief in the case arguing for the search's constitutionality.

It's a "devastating opinion," Sloan says. "If I were Ted Stevens, and I had some evidence of wrongdoing, I'd be putting it in my Congressional office, because the court basically just issued a blanket cover against searches.... It's such a help to any corrupt members of Congress, since it offers so much more protection than was previously offered."

In a previous circuit opinion ruling against Jefferson, a judge had called this sort of protection "a taxpayer-subsidized sanctuary for crime."

"I cannot believe that the Justice Department won't appeal this to the Supreme Court," Sloan said. "It's a very expansive readings of the Speech or Debate Clause [of the Constitution]."

The opinion said that FBI agents were wrong to have taken privileged (i.e. legislative) documents, the ones protected by the Speech or Debate Clause, from Jefferson's office. But by saying that, the court effectively prohibits the FBI from entering a Congressional office without the say-so of the lawmaker. Doing that creates a "fox guarding the henhouse problem," says Sloan.

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.”

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If the Senate aide who has been accused of handling Sen. Ted Stevens' (R-AK) personal finances while on the government clock received separate payments from the Alaska senator, she didn't list them on her public financial disclosure in 2006, the AP reports. Roll Call reported yesterday that the aide, Barbara Flanders, didn't disclose any additional personal income in 2007 either.

Flanders' involvement in the ethics scandal aired Tuesday when press reports said she testified before a grand jury about Stevens' finances and provided documents. Flanders is a former personal aide to Stevens and now is supposed to work full time for the Senate Commerce, Science and Transportation Committee. It appears she also handles Stevens' bills. If she wasn't paid for this work, Stevens should have listed her services as a gift on his own disclosure forms, which he has not done. If accurate, this kind of an arrangement is a violation of federal law.

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Congratulations to Rep. John Murtha (D-PA)! He is this year's winner of the Daily Muck's coveted "Most Pork" award. Murtha has requested or co-requested a cool $150 million in earmarked funds. (The Hill)

The House Rules Committee struck down three of Rep. Allan Mollohan’s (D-WV) earmark requests after Mollohan himself asked to remove the earmarks. The lawmaker, who anticipated that Republicans would move to strike the earmarks anyway, is currently under investigation by the FBI for his close ties to nonprofit groups and the earmarks he has directed to these organizations. (The Hill)

Sen. Tom Coburn (R-OK) has requested a Pentagon investigation of 21st Century Systems, Inc., a defense contracting company, for alleged misuse of government earmarks. Coburn has set his sights on the company as part of a wider effort to crack down on earmark spending. Sen Nelson (D-NE), who sponsored the earmark, defended his request despite questions raised by the fact that the Senator's son is an employee of the firm. (The Hill)

After two years of listening to complaints that the post-Katrina "disaster trailers" contained dangerously high levels of formaldehyde, FEMA is springing into action. They have finally decided to suspend the sale and donation of these trailers while they review the reports that the trailers are causing respiratory problems for residents. It's a stunning reversal, considering that only a few weeks ago Congress saw documents showing that FEMA lawyers had discouraged the agency from looking into the problem. (USA TODAY)

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How about post-facto FISA review, guys? Interested?

That's the message from Admiral Michael McConnell, the director of national intelligence. After a week of grueling briefings on Capitol Hill lobbying for an overhaul of the Foreign Intelligence Surveillance Act, McConnell last night released a statement reluctantly endorsing putting terrorist surveillance back under FISA Court supervision -- with certain restrictions. The key passage:

However, to acknowledge the interests of all, I could agree to a procedure that provides for court review—after needed collection has begun—of our procedures for gathering foreign intelligence through classified methods directed at foreigners located overseas. While I would strongly prefer not to engage in such a process, I am prepared to take these additional steps to keep the confidence of Members of Congress and the American people that our processes have been subject to court review and approval.

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The scheme was simple: dispatch political aides from the White House to agencies throughout the government and make sure political appointees there knew which Republican members of Congress were faltering. There was a line, however, that ought not to be (openly) crossed. Political appointees got a "not-so-subtle message about helping endangered Republicans," but they were not given explicit directions. That would be a blatant Hatch Act violation.



Karl Rove's aide Scott Jennings understood the game. That's why when he briefed (pdf) employees at the General Services Administration early this year (see a sample slide above), he knew to keep things at the not-so-subtle level -- but no more. From The Washington Post:

At [the briefing's] completion, GSA Administrator Lurita Alexis Doan asked how GSA projects could be used to help "our candidates," according to half a dozen witnesses. The briefer, J. Scott Jennings, said that topic should be discussed "off-line," the witnesses said. Doan then replied, "Oh, good, at least as long as we are going to follow up...."


Today, Sen. Edward Kennedy (D-MA) took advantage of Jennings appearance before the Senate Judiciary Committee to question him about the briefings. And Jennings, like Rove's former aide Sara Taylor, was right on message.

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Sen. Larry Craig (R-ID) called the tactics used by FBI and IRS agents who raided Sen. Ted Stevens (R-AK) home "Gestapo-like" today, the Crypt reports.

Craig's main objection seems to be that the agents could have parked a large white truck in front of Stevens' Girdwood home, photographed it and the neighboring property and carried out black trash bags (presumably filled with evidence) much more discreetly than they did. Maybe Craig's never been to Girdwood, because I just consulted our handy Girdwood map and it looks like it might have been tough for a dozen federal agents to have shown up at the most famous Alaskan's house without any of the neighbors noticing:



From the Crypt:

"I think some people say, 'Ah, but for the grace of God go I.' Especially when you have the allegatiatons, you have the judicial segment of our government, the executive branch, out raiding the homes of senators, that is a very frightening proposition. It is a bit Gestapo-like in its style and tactics," Craig said on Wednesday. "When the FBI was offered a key and invited into the home, they chose publicize it to make sure the media was there first, and they broke in. That is gamesmanship. That makes senators very, very angry when they attempt to cooperate when for reason they are caught in these webs and yet they are denied that for the sake of the judciary’s publicity. That is wrong.’’

There's irresponsibility. There's demagoguery. And then there's Trent Lott.

It turns out the Capitol Police have bolstered security around the U.S. Capitol after a recent al-Qaeda communique threatened an attack on Washington. Lott, according to Roll Call (sub.req.), responded with characteristic gravitas. In light of the heightened threat, Congress can either amend the Foreign Intelligence Surveillance Act or all of us can run screaming into the inferno.

Senate Minority Whip Trent Lott (R-Miss.) ominously advised Thursday that Congress needed to pass changes to terrorist surveillance laws before leaving for the August recess and warned that otherwise “the disaster could be on our doorstep.”


Further demonstrating his counterterrorism sagacity, when asked if people should leave Washington, D.C., during the month of August, Lott replied that "I think it would be good to leave town in August, and it would probably be good to stay out until September the 12th." By contrast, a former Capitol Hill chief had the temerity to note that, according to U.S. intelligence analysis he'd been privvy to, "Americans tend to be much more oriented toward anniversaries and the jihadists seem to be less so. I've seen over the years where we concentrate on dates and the analysts say, 'Don’t get wrapped up in dates because our terrorist jihadist enemies bide their time.'"

Negotiations continue between the White House and Senate Democrats to overhaul the Foreign Intelligence Surveillance Act, and a deal might be done as early as this evening. But Sen. Russell Feingold tells Roll Call (sub.req.) that he'd rather scrap the summer congressional recess than scrap civil liberties in the name of getting a deal done by Monday, when Congress takes a holiday:

Saying Congressional Democrats and Republicans were moving “awfully quickly” on a White House proposal to make it easier to eavesdrop on suspected overseas terrorists, Feingold said he is in “no hurry” to leave town for the August recess.

“I don’t feel the need to get out of here. I would much rather stay here than have us make a terrible mistake,” said Feingold, who has made a name for himself as a champion on civil liberties in the Senate. “This is not the kind of thing that should be done on the fly, and I am prepared to stay here as long as it takes to fix it. Or, if they need force this through, I’m not going to make it easy, if they don’t make it better.”

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It's hard to keep track of every distinct controversy sparked by Alberto Gonzales's testimony last week to the Senate Judiciary Committee, but Sen. Dick Durbin (D-IL) is trying to make sure one particular element of scandal doesn't fall by the wayside.

In response to questioning by Durbin and Sen. Ted Kennedy (D-MA), Gonzales said it was "not so clear" that five interrogration techniques -- painful stress positions, use of dogs in interrogation, nudity, mock execution, and the infamous waterboarding -- were ruled out by President Bush's recent executive order on CIA interrogations. Today, Durbin sent a letter to Gonzales asking him to make sure that's really what he meant to say. The letter uses a somewhat confusing formulation about whether the administration thinks the use of such techniques on U.S. personnel is legal, but that's simply a way of drawing out whether the Bush administration has created a loophole in its interpretation of the Geneva Conventions.

Full text below the fold.

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