Comments on: Analysis: a significant, initial victory for Rep. Jefferson

By: Steve

Steve — Tue, 01 Aug 2006 13:42:51 +0000

I think the Order has a much more significant long-term consequences: it may call into question the government’s use of “taint teams” to review attorney-client privieleged documents it seizes during a search warrant. The Sixth Circuit recently questioned that practice in the grand jury subpoena context, and now the D.C. Circuit has apparently concluded that allowing even “Chinese-walled” government attorneys to review the documents pending a definitive ruling on which documents are privileged could cause irreparable harm….

By: r.friedman

r.friedman — Sun, 30 Jul 2006 12:53:47 +0000

Although it is a victory for privilege, it is a two-edged sword. The order’s requirement that Jefferson immediately review the materials and raise any claims of privilege for the district court to rule on means that claims ruled on now will be decided pre-trial and any others waived. Surely the defense would be happier with a ruling that allowed it to object to evidence as privileged when it was introduced at trial.

By: Adam White

Adam White — Sun, 30 Jul 2006 03:57:51 +0000

Re your comment that, "[s]ince the Circuit Court did not explain its order, it was unclear whether this represented a recognition that the Speech or Debate Clause, or the concept of separation of powers, or both, provided at least a temporary shield."

The court cites Brown & Williamson v. Williams, 62 F.3d 408 (D.C. Cir. 1995), which is squarely a Speech or Debate Clause case. Indeed, the court cites to page 420, where the D.C. Circuit explained, "We do not accept the proposition that the testimonial immunity of the Speech or Debate Clause only applies when Members or their aides are personally questioned. Documentary evidence can certainly be as revealing as oral communications--even if only indirectly when, as here, the documents in question ... do not detail specific congressional actions. But indications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do--and this is true whether or not the documents are sought for the purpose of inquirng into (or frustrating) legislative conduct or to advance some other goals ...."

The court explicitly rejected with the testimony-only reading of the Speech or Debate Clause espoused by the Third Circuit in In re Grand Jury Investigation, 587 F.2d 589, 597 (3d Cir. 1978).

(See also page 423: "B&W's claim at bottom, is a right to engage in broad discovery of documents in a congressional file that comes from third parties. The Speech or Debate Clause bars that claim.")