August 3, 2007
DC Circuit Rejects Search of Privileged Materials in Congressman's Office
The District of Columbia Circuit Court of Appeals ruled that the search of Louisiana Representative William Jefferson's House office violated the Speech or Debate Clause to the extent FBI agents viewed "legislative materials" there. On the issue of the interference by members of the Executive Branch in the operation of the Legislative Branch, the opinion (available below) explains:
The search of Congressman Jefferson’s office must have resulted in the disclosure of legislative materials to agents of the Executive. Indeed, the application accompanying the warrant contemplated it. In order to determine whether the documents were responsive to the search warrant, FBI agents had to review all of the papers in the Congressman’s office, of which some surely related to legislative acts. This compelled disclosure clearly tends to disrupt the legislative process: exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process.
The Court rejected the Congressman's claim that all materials seized in the search, including non-privileged documents, must be returned. The D.C. Circuit held: "Although the search of Congressman Jefferson’s paper files violated the Speech or Debate Clause, his argument does not support granting the relief that he seeks, namely the return of all seized documents, including copies, whether privileged or not." Instead, the case is remanded to the District Court to sort through the documents and computer files seized from the office to determine which are subject to the privilege, so that the government can then review any records that fall outside the privilege afforded by the Speech or Debate Clause. The Court rejected the argument that legislative offices are immune from searches by the members of the Executive Branch. The Court noted, "This particular search needlessly disrupted the functioning of the Congressman’s office by allowing agents of the Executive to view legislative materials without the Congressman’s consent, even though a search of a congressional office is not prohibited per se."
Circuit Judge Karen LeCraft Henderson concurred in the judgment, and would have found no violation of the Speech or Debate Clause from the viewing of legislative material by the Executive Branch. In her view, the privilege afforded Members of Congress works to keep any such material from being admitted at trial, but does not prevent a search that involves the viewing of legislative documents because that is not questioning under the Speech or Debate Clause, which provides that "they shall not be questioned in any other Place."
While a partial victory for Representative Jefferson, since the search he has been indicted on corruption charges in the Eastern District of Virginia, so the records seized do not appear to have had a significant effect on the case. The opinion is unlikely to make Capitol Hill very happy because it acknowledges that their offices are subject to searches, just like everyone else's. (ph)
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