Wednesday, May 24, 2006
The corruption investigation of Louisiana Representative William Jefferson took an extraordinary turn on May 20 when FBI agents executed a search warrant for his Congressional Office in the Rayburn Building. This was the first time in history that the office of a sitting Congressman had been searched, and the use of this means to gather evidence has triggered a strong reaction from the leadership of the House of Representatives, including a complaint from Speak Hastert directly to the President. The issue remains controversial, as a front-page story in the New York Times (here) discusses the continuing concern in Congress over the tactic used by the Department of Justice. Co-blogger Ellen Podgor noted in earlier posts (here and here) that searches in white collar crime cases are uncommon, although in the past few years they have been used with increasing frequency, particularly in health care investigations. In recent corruption probes, search warrants were used to gather evidence against former Representative Randy "Duke" Cunningham, and FBI agents executed a warrant at Representative Jefferson's home and are reported to have seized $90,000 from a refrigerator that was part of an undercover payment. Searches can be an especially effective tool in cases in which there is a likelihood evidence -- particularly computer files -- may be destroyed or removed to an unknown location.
The problem with searching the office of a Congressman is that there are significant separation of powers issues, and perhaps more importantly questions about whether the seizure of evidence might violate the Speech or Debate Clause of Article I, Section 6 of the Constitution (the New York Times refers to it as the "Speech and Debate" Clause, which is technically incorrect). That provision states members of Congress "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." Those who have lived in Washington D.C. may be familiar with the Clause because it protects members of Congress stopped on I-66 for violating the HOV restrictions. On a higher plane, however, House Majority Leader John Boehner predicted (see AP story here) that the issue of the search will have to be resolved by the Supreme Court, which likely means that any challenge by Representative Jefferson would be on Speech or Debate Clause grounds. The Fourth Amendment does not afford any specific protection to legislative offices so long as there is probable cause to believe that there is evidence of criminal activity at the location specified, and the House of Representatives would not have standing to raise a Fourth Amendment claim on its own.
The two leading Supreme Court cases on the scope of the Speech or Debate Clause are United States v. Brewster, 408 U.S. 501 (1972), and United States v. Helstoski, 442 U.S. 477 (1979). In Brewster, the Court stated, "[A] Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.” In Helstoski, the Court explained,
Likewise, a promise to introduce a bill is not a legislative act. As to what restrictions the Clause places on the admission of evidence, our concern is not with the “specificity” of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other “legislative acts” such as utterances in committee hearings and reports. But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not a legislative act.
I won't pretend to be an expert on Speech or Debate Clause issues, but the scope of the protection as explained by the Supreme Court certainly seems to cover at least some of the materials in Representative Jefferson's office that were subject to the search warrant. News reports state that the Department of Justice used a "taint team" to review items to determine whether they could be seized, but that is faint protection under the Constitution and not likely to insulate the search from a challenge.
Usually, a defendant challenges a search after the filing of charges, but Federal Rule of Criminal Procedure 41(g) permits a challenge at an earlier stage: "A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized." I expect that this will be the means by which Representative Jefferson will challenge the search, if he chooses to do so, and the case would be filed in the U.S. District Court for the District of Columbia. Given the extent of the government's investigation of possible corruption involving the Congressman, I would not be surprised to see a challenge to the search on Speech or Debate grounds because that could slow the process, if nothing else. If such a motion is filed, counsel for the House of Representatives and Senate probably would file amici briefs to have a court review the documents to determine whether they are protected by the Constitution, at a minimum, to ensure that legislative materials have not been seized.
With the continuing investigations of corruption in Congress involving a number of different Representatives, Speech or Debate Clause issues will continue to pop up. (ph)
UPDATE: Representative Jefferson filed a motion for the return of the papers seized from his House Office, asserting that the seizure violated the Constitution's Speech or Debate Clause. An AP story (here) discusses the status of the case. (ph)