Tuesday, July 11, 2006

Search of Rep. Jefferson's Office Ruled OK

The search of Rep. Jefferson's congressional office was ruled constitutional by a district court (see Washington Post here).  The decision here (via Talk Left here and How Appealing here) clearly rules against the arguments presented by Rep. Jefferson on his Rule 41(g) motion. 

In this decision, the court states that "the Speech or Debate Clause’s testimonial privilege was not triggered by the execution of the search warrant."  The district court notes that:

"[t]he D.C. Circuit has held that the 'touchstone' of the Speech or Debate Clause privilege is 'interference with legislative activities.' . . . Thus the Court’s decision here depends upon whether the execution of the search warrant impermissibly interfered with Congressman Jefferson’s legislative work." (citation omitted)

The district court further states:

"The Speech or Debate Clause is not undermined by the mere incidental review of privileged legislative material, given that Congressman Jefferson may never be questioned regarding his legitimate legislative activities, is immune from civil or criminal liability for those activities, and no privileged material may ever be used against him in court."

The court also rejected a separation of powers argument.

According to the Washington Post here , counsel for Rep. Jefferson plans to appeal this decision.  An interesting question will be whether this ruling is appealable. Can one appeal a Rule 41(g) motion for return of property?

There are cases to support both sides here. See, e.g., Sealed Appellant 1 v. Sealed Appellee, 199 F.3d 276 (5th Cir. 2000) (holding the denial of return of property is not appealable); but see First National Bank of Tulsa v. U.S. Department of Justice, 865 F.2d 217 (10th Cir. 1989)(holding that the court of appeals had jurisdiction to hear denial of motion for return of property). 

This particular case presents the added factor that it pertains to the office of a congressman. As stated by the district court in its opinion here:

"While Congressman Jefferson overlooks the sure availability of a motion to suppress the evidence seized during the search should the Government’s investigation result in his indictment, the Court recognizes that '[t]he unprecedented search of Congressman Jefferson’s office has raised questions of serious constitutional magnitude that directly implicate the fundamental workings of the federal government.' Reply 19. The Court agrees that the interests of justice demand that these issues be addressed now." Id. 7-8.



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