Saturday, June 17, 2006
Chief U.S. District Judge Thomas Hogan heard arguments on June 16 about the search of Representative William Jefferson's office in the Rayburn House Office Building by FBI agents seeking evidence of his involvement in soliciting and accepting bribes. Representative Jefferson, who was removed from the House Ways & Means Committee that same day, and the counsel for the House of Representatives argued that under the Speech or Debate Clause the government cannot search the office of a Congressman because the materials there are privileged. They argued that the search would only be lawful if the Congressman were present to review the documents and withhold those that are part of the legislative process. The government, echoing earlier Supreme Court decisions on the Speech or Debate Clause, asserted that bribery is not a legislative act.
Representative Jefferson and the Legislative Branch face two hurdles in making their argument that the Constitution protects legislative materials from being seized by the Executive Branch in an otherwise lawful search (there does not appear to be any issue regarding probable cause or the validity of the warrant). First, there is no clear delineation of what documents would be part of the legislative process that would allow a court to determine whether the claimed privilege applies. Unlike attorney-client communications, which can be identified as privileged if they involve consultation related to legal representation, almost any document or statement could -- or could not -- be related to the legislative process. Second, the location of the documents would seem to be irrelevant, yet that is the heart of the separation of powers argument. A search of a Congressman's home, car, luggage, etc. would not appear to raise the same concerns as a search of the legislator's office, yet it's not clear why documents in that office should be treated any differently.
The argument against the search seeks to extend the Speech or Debate Clause from an immunity for the individual legislator and evidentiary rule precluing reference to legislative acts to a full protection of documents from ever being obtained by investigators. The Supreme Court has noted (see earlier post here) that acts related to demanding or accepting a bribe are not legislative acts, and therefore can be introduced in a prosecution of a Congressman. Arguing that certain documents are completely immune from seizure because of their location and possible relation to the legislative process may have the effect of making it appear that Congress is above the law. I doubt the judiciary will accept a rule with that type of an effect. A New York Times story (here) discusses the hearing before Judge Hogan. (ph)