Wednesday, May 31, 2006

The Government's "Filter Team"

According to the Washington Post here,  DOJ is offering a "filter team" "to be made up of an FBI agent and two Justice Department lawyers not part of the investigation."  The idea would be that Jefferson would go through these materials with the team and then he could assert to a court what items might be "privileged."

There is one basic problem here.  The "team,"  albeit not directly involved in this case, is still a government team.  It is nice of the government to offer members of their team as part of the "filter team,"  but shouldn't the team be appointed by the Court?  It is not like the items in question are in jeopardy of being destroyed.  Might this be a good time for the court to intervene and either peruse the materials him or herself, or appoint someone not associated who can review the items and decide if the items violate privilege.  More importantly, might this be a good time to hear from Jefferson's lawyers so that a court can decide if the search was warranted here.  One commenter to another blog entry here argues that the court already had the chance to review the search as the court approved the issuing of the search warrant.  The problem here is that it was issued the warrant without any objection, because no one was given notice of the search. It was premised solely on what the FBI presented. If this had been a subpoena, the court would have heard from both sides in the objection and not just the DOJ.

(esp)

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Comments

You've missed the point of the comment entirely. The commenter wrote, "Secondly, 'probable cause' is established - thus why should a congressman get special protections that the citizens that he is supposed to be serving are not entitled?" In response, you write, "The problem here is that it was issued the warrant without any objection, because no one was given notice of the search." Thus, you still haven't addressed why this guy should get special treatment - you and I don't get notice of search warrants, why should a member of Congress? I expect you'll give me some "delicate balance between coordinate branches" malarky, but in the end you have no answer to why someone (an elected official!) whom there is probably cause to believe is hiding bribe money(!) should possibly get notice. What were they supposed to do, subpoena the cash?

Posted by: Anonymous | May 30, 2006 8:42:51 PM

But Jefferson was subject to a subpoena duces tecum--it was issued to him in September 2005, and he failed to comply. In fact, he actively sought to avoid this subpoena in the intervening months--enough so that it appears he enlisted the House counsel's office to store copies of the subject documents in its safe.

I guess we just disagree here--I think this is a valid use of the investigative power to retrieve information to which the government is legally entitled and had been roadblocked from getting by the target; you believe there should have been consultation and a remedy besides a search.

That's fine, and Congress appears to side with you. But how much transigence is too much? The government had been railroaded for 8 months. Do they have to talk, beg, and plead until they're blue in the mouth?

Posted by: JPF | May 31, 2006 7:00:41 AM

To respond to both comments -
1. Yes, those in Congress are special and are not just ordinary citizens. That is exactly why the founding fathers placed a provision in the Constitution dealing with the Speech and Debate Clause. They wanted to protect our government officials from being subjected to political charges. That does not mean that the FBI can't investigate a congressman and even indict one (I do remember Abscam). It just means that certain safety measures need to be used to accomplish this process.
2. If the government was not obtaining the items requested using the subpeona powers than they like anyone else can go to the courts and ask for enforcement.
(esp)

Posted by: ellen | May 31, 2006 7:54:17 AM

You can read Jefferson's recent motion to seek the return of the seized evidence here, along with the Justice Department's response here.

Posted by: JLO | May 31, 2006 11:35:57 AM

I don't quite understand why Jefferson's home was subject to search without objection, but his legislative office is off-limits. Surely sensitive documents could be found in his den at home. Should he then be immune from search at home too?

The FBI is dealing with someone who has hidden the fruits of his alleged crime in a freezer (an out of the way place), has actively sought to prevent disclosure of documents to the FBI by underhanded means (hiding documents while the FBI was searching his home--using the old "under a stack of papers" routine), and has entrusted the House counsel with copies of documents for safe-keeping.

I'm not sure why there is an interest in preventing the FBI from seeking information relevant to their investigation and pursuant to a judicially authorized search warrant. This cannot be what the Founders envisioned when they inserted the Speech and Debate Clause (and its exception for felony) into Article I.

Respectfully, counselor, I suggest that your reading of the clause and your portrayal of Congressmen as "special" is too broad.

Also, because I did not mention it before: a judicially-selected filter team runs into the same problems. If it's a separation of powers issue, then NO ONE can search a Congressional office, be it executive or judiciary. The Speech and Debate Clause, as you have interpreted it, would prevent such a search if there was any chance that privileged documents would be discovered.

Also, I have serious reservations about the judge doing the investigative work of the FBI--THAT is a serious separation of powers issue, going to powers. The Congressional immunity doctrine, as it relates here, is merely a means for a Congressman to prevent the FBI from using its investigative powers to go through his plush Capitol Hill office.

That's bad precedent, and even worse when you consider the "special" status hoisted upon Congressmen under it.

Posted by: JPF | May 31, 2006 1:01:58 PM

Not to beat a dead horse, but (putting aside documents and records) are you really saying that the government should have asked for the cash in the freezer by a subpoena, and then gone to court to get an order that the Congressman turn it over? I'm not sure that anyone, let alone anyone with experience in law enforcement, would ever expect the target of a corruption investigation to turn over his bribe money. In other words, the risk of obstruction is really high here, and your method, while sounding nice in theory, would never work in reality.

Posted by: Anonymous | May 31, 2006 3:36:34 PM

A few points on previous posts:

1. The Speech or Debate Clause portion which mentions the exception for felonies pertains to the arrest portion of the clause. I doubt anyone is arguing that Jefferson can't be arrested for a felony.
2. There is a second portion in the Clause which states, "...and for any speech or debate in either House, they shall not be questioned in any other place." This has held in subsequent case law. Legislators can't be questioned in criminal proceedings regarding their legislative acts, among which speech and/or debate falls under. This also extends to admitting evidence which includes legislative acts. Of course, members of Congress can be charged for bribery, but it's prosecuted very carefully as to avoid these sensitive areas.
3. A big part of the conversation on this has been whether or not the barring of legislative acts as evidence then extends to the inspection of documents which potentially include legislative acts. Thus, the "filter team." But, since the "filter team" is also made up of individuals from the executive, separation of powers rears its head again. (However arguable that case may be to some...) Arguably, the judiciary may not be a neutral enough "filter" either.
4. The home search should have raised the same separation of powers and Speech or Debate Clause arguments. Whether or not Jefferson's legal team raised them after the August raids, I can't say. If so, it wasn't raised very vocally.
5. Members of Congress are "special" in the sense that there are certain protections under the Speech or Debate Clause. They aren't above the law or immune, but there are limits to specific areas of inquiry.
6. A lingering question to me is why Jefferson's legal team never sough to quash the original subpoena. Instead, they ignored the subpoena entirely and just made certain precautionary moves. It seems to me that by avoiding the routine process, it only make matters worse and investigators more aggressive in their tactics.

Posted by: JLO | May 31, 2006 8:11:33 PM

Wow - my comment made a blog mention. Hope that wasn't my Warhol 15 minutes!

Seriously though - is not the Congressman's complaint of the same nature that Nixon complained of (and lost that argument at the Supreme Court) when he didn't want to turn over tapes, etc.? If the POTUS isn't above the law, neither is a Congressman.

Also a "filter team" (or "taint team" in some parts of the country) is common when a search may encompass and pull into evidence (sealed and parceled from the rest) documents that may be privileged (e.g. attorney/client). It is not unusual that a "taint team" - sometimes from the same district - but not involved with the prosescution - review the documents to see if they are privileged or not. They are then provided for viewing to the defense who have to assert the privilege - however that is only the first step for review.

In this adversarial process - only the prosecution has the dual responsibility of justice (not "tacking skins on the wall") - whereas the defense has its obligation only to the client.

Let's sing the mantra: "neither guilt escape nor innocence suffer...."

Posted by: Deuce | May 31, 2006 11:16:31 PM

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