The Hill search and the constitutional conflict
UPDATE 3:40 p.m. President Bush on Thursday ordered that the documents seized in the search of a sitting congressman’s office be sealed for 45 days. No one involved in the investigation, he said, would have accesss to the materials. Presumably, that will provide time for the White House and Congress to try to find some compromise to ease the developing constitutional conflict. Noting the interbranch dispute, Bush said that “it is clear these differences will require more time to be worked out.” In the meantime, the documents will be in the custody of the U.S. Solicitor General, whose office is not involved in the investigation. The President’s statement can be found here.
The constitutional challenge to the FBI’s unprecedented search of the office files of a sitting member of Congress is taking a more definite shape, based on court documents that have now become available. Rep. William Jefferson, the Louisiana Democrat whose offices were scoured for 18 hours by FBI criminal investigation agents last weekend, has opened the challenge with filings in U.S. District Court in Washington. The documents indicate some of the issues that would be before the Supreme Court, in the event — which seems increasingly likely — that the dispute reaches the Justices.
Jefferson has filed a motion asking Chief Judge Thomas F. Hogan to “order the return of all items seized from the congressional offices.” The motion claims a violation of the Fourth Amendment search clause, a violation of the doctrine of separation of powers, a violation of the congressman’s “absolute immunity” under the speech and debate clause of the Constitution, and a violation of federal criminal rules of procedure. The motion can be found here, and the memorandum in support can be found here. The memorandum lays out the claims in detail.
In addition to seeking the return of paper files and a computer hard drive taken by FBI agents, Jefferson asked the judge to issue an immediate order barring the FBI and the Justice Department from any further review or inspection of the items seized, requiring the sequestration and securing of the seized items, and requiring a report to the judge “detailing which documents have been reviewed and what steps have been taken to sequester the documents from further review pending further order of the court.”
The warrant signed by Judge Hogan authorizing the search, including the supporting affidavit, can be found here. It is a lengthy document, and in the form that appears, substantial parts are redacted. But of unusual interest in the paper are pages 74 to the middle of 82, laying out the “special search procedures” the FBI agents planned to follow in order to filter out “information that may fall within the purview of the Speech or Debate Clause privilege,” and to “minimize the likelihood that any potentially political sensitive” items, not responsive to the search parameters, would get into the hands of the prosecuting team. Rep. Jefferson has challenged this Executive Branch review of a privilege that he contends only a member of Congress can understand and exercise.
It would seem that one source to look at to help ascertain the parameters of the privilege asserted in this case, by analogy, would be those cases bearing upon executive privilege.
Comment by Tom-M — May 25, 2006 @ 3:57 pm
The problem with teasing search and seizure implications out of the penumbras of the Speech and Debate Clause is that the Executive itself has to review all of the plausibly relevant documents with its own eyes to determine which ones are incriminating and which ones are not.
Impeding a federal investigation, especially once a warrant has been issued, even if the obstruction is headed by House counsel and manned by Capitol Police, is not legal. As Professor Orin Kerr has pointed out over at VolokhConspiracy, Congress passed 18 U.S.C. 3105 to govern who can execute federal search warrants:
“A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.”
It seems that would decisively settle the issue of whether there can be a legislative official who pre-screens evidence.
The obvious retort is that the structural implications of the Speech and Debate Clause beat a statute. I have two replies: 1. The SCOTUS precedents on the Speech and Debate Clause suggest the contrary. Remember, Congressmen could have been exempt from bribery, but Congress had passed a bribery law. Since Congress passed this warrant statute, the issue should be settled. 2. If you buy that one, then the Tenth Amendment provides any taxpayer with a right to sue the federal government for laws he doesn’t fancy.
What (1) makes more sense and (2) is consistent with the prevailing precedents on the Speech and Debate Clause is the following: when the prosecutor empanels a grand jury, Jefferson can file a motion asking that certain documents that fall within the protection of the Speech and Debate Clause be kept from exposure to the grand jury; if that fails, Jefferson may file a motion seeking to suppress certain documents at trial because they fall within the Speech and Debate Clause.
While the privilege is evidentiary, there is little to no proof that the protection precludes any investigation of members of Congress and attaches prior to the attachment of the Sixth Amendment. I have as of yet heard no convincing argument why this privilege attaches prior to the attachment of the Sixth Amendment (i.e., during the purely investigatory stage).
With investigatory powers in mind, let’s consider that proponents of this expansive reading of the Speech and Debate Clause have yet to satisfy the burden of coherence. They fail to appreciate that such legislative pre-screening is, in reality, interference in a federal investigation. What happens when the legislative official who is screening excludes (by malice or by accident) evidence that the Executive would have wanted for its investigation and ultimately would have been admissible in court? It makes much more sense for the privilege to be akin to the state secrets privilege.
Comment by Commentator — May 25, 2006 @ 4:47 pm
Is there anyone outside Congress who actually believes that Jefferson’s separation-of-powers defense to his office being searched has any merit?
I don’t. The search was duly authorized by a federal judge, and conducted pursuant to a valid warrant.
The speech and debate clause protects activities, not places.
It doesn’t turn a congressman’s office into the equivalent of the Forbidden City.
The First Amendment protects books, but that doesn’t mean police can’t search an adult bookstore and close it down as a nuisance if prostitution is occurring on the premises. (See Arcara v. Cloud Books).
Why should the rule be radically different under the speech and debate clause of the Constitution?
Congressmen should drop their claims of outrage over the search and learn to live by the same laws as everyone else.
Comment by Hans Bader — May 26, 2006 @ 12:20 pm
This is probably the greatest overreach by the Executive Branch since the Saturday Night Massacre in 1973. That incident led to led to the eventual resignation of President Nixon. Let us hope that the current Administration’s continued and habitual exercise of imperial powers will lead to a similar outcome.
This is not an incident where police powers are being used legitimately to ferret out criminal conduct. It is an incident in which the Justice Department, like the Defense Department, has violated established standards of civilty and respect for the rule of law. The Founders would not have expected that in a free society, the Executive would be permitted to employ police powers in the halls of the Legislative Branch.
Comment by Rumpole — May 26, 2006 @ 1:05 pm
“House leaders acknowledged Friday that FBI agents with a court-issued warrant can legally search a congressman’s office….”
Here is the AP story.
The question I would like answered is why a congressman who defied a valid subpoena for eight months is still a congressman. Mr. Hastert and Ms. Pelosi, please take a break from your huffing and puffing and explain why you are not keeping your own House in order. If congressmen are going to be exempt from the searches the rest of us are subject to, whether by Constitution or by custom, then Congress has the duty to ensure that individual members do not exploit those exemptions to cover corruption. That is why the Constitution gives the House the authority to expel a member.
Comment by Kent Scheidegger — May 27, 2006 @ 3:10 pm