Sunday, September 23, 2007
The Department of Justice has requested rehearing en banc of the decision of a panel of the D.C. Circuit that found the government violated the Speech or Debate Clause in its search of Representative William Jefferson's office in the Rayburn House Office Building. That decision, available below, determined that "the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause." The Politico (here) quotes from the government's brief seeking rehearing, which argues that "[b]y interpreting the Clause to include an absolute non-disclosure privilege, the panel has not only frustrated the execution of search warrants supported by probable cause, it has invited questions concerning the lawfulness of essential tools in investigating and prosecuting corruption - including electronic surveillance, consensual monitoring, searches of home offices, and voluntary interviews of staffers - that have never been considered problematic."
Representative Jefferson was indicted before the D.C. Circuit's decision, and it is unlikely the evidence seized from his office was of great importance to the prosecution. By challenging the panel's decision, the Department of Justice risks provoking further ire on Capitol Hill, where the search was none too popular. The Solicitor General's office has to approve the decision to seek rehearing en banc, so that office must view this as a case with important implications. If the D.C. Circuit denies review by the full court, there is at least a decent chance the SG will file a petition for certiorari. The principle appears to be important to the Department of Justice, even though the underlying prosecution probably will not be affected to any great degree by the appeal. Any further appeal of the Speech or Debate issue will have to be resolved before the conclusion of the prosecution of Representative Jefferson, but that case does not show any signs of being settled with a plea in the near future, so the appeal is unlikely to be moot. (ph)