Saturday, May 20, 2006
Can the FBI, in investigating a member of the legislative branch, search his or her legislative office?
This question may be real, and may depend on what the third branch of government may have said or will say with regards to this search. According to the NYTimes here, the FBI has "raided" the office of William J. Jefferson (D. La.).
Searches used to be rare in white collar investigations. If the government wanted documents, they would use a subpoena duces tecum to procure the documents for grand jury review. In recent years, however, there appear to be more instances of searches being used in white collar cases. Searches have an element of surprise that can be very effective in scaring the individuals being investigated. More importantly, searches are used when the government believes that documents or evidence might be destroyed. The bottom line, however, is that the government has the discretion to choose when they will use a subpoena and when they will search. This time it appears that they decided to search.
Addendum - Searches are also public. Whether a witness is subpoenaed or documents produced may not necessarily make the newspapers. In contrast, searches are open. Searches require probable cause and thus, approval. Subpoenas do not require judicial approval. When a subpoena is issued, the recipient has time to go to court and make a motion to quash the subpoena if they believe it is not justified. That notice is not provided with a search and the motions come after the fact when someone is later saying that the evidence from the search should be suppressed (excluded from being used in court). So other questions that remain are: what was the basis of this search, who approved it, and what specifically was the FBI seeking? And yes, of course, why such a drastic step of using a search as opposed to a subpoena?
See also Washington Post here.