Wednesday, January 2, 2008
The D.C. Circuit's ruling on the legality of the FBI's search of Representative William Jefferson's House office has caused the Department of Justice more than a little consternation, and the Solicitor General's Office filed a cert petition (available below) on December 19 to overturn the ruling. This issue is not so much that the government lost below because the materials seized do not appear to have had much significance in the case -- Congressman Jefferson was indicted and faces a trial currently scheduled to start on February 25, 2008. The problem for the government is how the D.C. Circuit construed the scope of the Speech or Debate Clause, which provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." U.S. Const. Art. I, § 6, Cl. 1.
In its ruling in United States v. Rayburn House Office Building Room 2113 (available below), a majority of the panel essentially held that the Speech or Debate Clause affords members of Congress a privilege from having materials protected by the Clause being examined by members of the Executive Branch, and perhaps by anyone else for that matter. The D.C. Circuit stated that "[a]lthough in Gravel the Court held that the Clause embraces a testimonial privilege, to date the Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privilege. However, this court has." The SG argues in the cert petition that this misconstrues the protection afforded by the Speech or Debate Clause, which the government claims is not designed to shield materials from any public disclosure but only to protect against a member of Congress from being questioned about it.
How can the government get the Supreme Court to take a case in which the lower court's ruling does not appear to have had any effect on the underlying prosecution? The tried-and-true method of "waving the bloody flag" by arguing that the decision will have a deleterious impact on a range of corruption investigations. That claim may not be completely fanciful because one Congressman, Representative John Doolittle, has already raised questions about subpoenas and searches in an investigation of his dealings with former superlobbyist Jack Abramoff. The cert petition argues:
The court of appeals' absolute rule against compelled disclosure of Speech or Debate material to the Executive Branch calls vital investigative techniques into immediate and serious question with respect to public cor ruption probes. Although this case involves a search of a Capitol Hill office (a concededly extraordinary event), the court's decision threatens to impede searches of Members' homes, vehicles, or briefcases. Also important are the potential implications for wiretaps and pen registers directed at Members. Even using techniques designed to minimize the interception of privileged conversations, officers typically hear privileged communications or identify calls pertaining to legislative acts while seeking unprivileged evidence of crime.
This Court's guidance is needed. The District of Columbia Circuit denied rehearing en banc by a 5-4 vote, and clarification or reversal of its erroneous decision at some indefinite time in the future cannot alleviate the immediate cloud over ongoing public corruption investigations. The court of appeals' decision affects all congressional investigations because it governs investigations in the District of Columbia -- the seat of our Nation's government. The decision also has a chilling effect in other jurisdictions, because the Department of Justice must weigh the need for evidence in those jurisdictions against the potential that courts will hold that investigations were tainted by the use of previously uncontroversial investigative techniques. The petition for a writ of certiorari should therefore be granted.
The SG's office does not always get its cert petitions granted, but it has a pretty good track record and the Supreme Court may well have to step in to decide the issue because of the delicate issues related to relations between the Executive and Legislative Branch the search raises. The D.C. Circuit denied rehearing en banc by a 5-4 vote, and there was a dissent from the panel, so this is obviously a close case, which probably enhances the likelihood the Court will get involved by granting the cert petition. Opposing the Department of Justice will be both Representative Jefferson and, more importantly, the House and Senate, which filed briefs before the D.C. Circuit. The search caused a great deal of discomfort in Congress, and the real fight will be between the two branches if the case comes before the Supreme Court.
To avoid any mootness claims if the prosecution of Representative Jefferson is concluded before the Court reaches the issue, the SG asserts that
the investigation underlying this very case has not yet concluded, because the government continues to investigate other participants in Representative Jefferson's schemes. Thus, the evidence seized in the search at issue here is relevant not only to the prosecution of Representative Jefferson, but also to the ongoing investigation and potential prosecution of other individuals. For that reason, the importance of the question presented is not limited to the government's case against Representative Jefferson and will continue regardless of whether he is convicted.