Analysis: a significant, initial victory for Rep. Jefferson
on Jul 29, 2006 at 7:47 am
The D.C. Circuit Court on Friday gave a Louisiana congressman a significant, initial victory in his constitutional feud with the Justice Department over materials seized from his Capitol Hill office during a bribery investigation search. The three-judge panel ordered a U.S. District judge to give Democratic Rep. William Jefferson a chance to examine papers and computer disks as a basis for claiming that they are constitutionally protected as “records of legislative acts.”
The Circuit Court barred the Justice Department from reviewing any of the seized materials “pending further order of this Court.”
The two-page order was a victory for the congressman in four separate ways:
First, it provided an initial recognition that some of the materials may be protected by the Constitution from use in the bribery investigation — a claim that had been rejected totally by Chief U.S. District Judge Thomas F. Hogan. Since 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. (See Adam Whjite’s comment, below, for an interpretation of the order on this point.)
Second, the order put the task of the first review of whether some materials were legislative in nature in the congressman’s hands, not in either the hands of Judge Hogan or of the Justice Department, although Hogan gets the last word at the District Court level on this.
Third, the order impliedly rejected outright a Justice Department proposal that its own “filter team” of lawyers or agents not involved in the investigation should make the first review to see if any materials were legislative.
Finally, it silently rejected the Justice Department argument that a member of Congress had no right to pursue an immediate appeal to test constitutional claims about an ongoing criminal investigation involving a Capitol Hill office search.
While Jefferson may not ultimately prevail on any claim of legislative privilege, the temporary order clearly sets a precedent that puts the Justice Department on notice that it does not have unqualified authority — even with a court-approved warrant — to enter a legislative office, seize papers and computer files, and decide on its own how to use them in a criminal investigation. That development may strengthen the hand of the leadership of the House in continuing talks with the Justice Department to work out a protocol for future potential searches on Capitol Hill.
The Circuit Court order has five aspects:
First, the case was sent back to Judge Hogan (who had twice rejected all of Jefferson’s constitutional claims, and had issued the initial search warrant) with instructions to use either “a judicial officer or a special master” to copy all physical documents and give copies to Jefferson and to sort through the computer files to search for potential criminal evidence that the initial warrant had listed and give Jefferson a list of those.
Second, Jefferson is given two days after receiving the materials to submit to Hogan — without sharing with the Justice Department — “any claims that specific documents or records are legislative in nature.”
Third, Hogan is to review in camera any items that Jefferson claimed were legislative, and make findings for or against those claims.
Fourth, the Justice Department in the meaning is “enjoined from reviewing any documents or records seized from Congressman Jefferson’s office pending further order of this Court.”
Finally, the case at the Circuit Court is held in aberyance pending Judge Hogan’s rulings as directed. Hogan was asked to notify the Circuit Court “promptly upon its determination of the question on remand.”
The order by implication rejected Jefferson’s demands that the materials be returned to him, but that was considerably outweighed by the recognition of the constitutional foundation for his objections to the seizure. At the same time, however, the order provides no hint of how the Circuit Court might ultimately resolve the constitutional confrontation.
The order was issued by Circuit Judges David B. Sentelle, Janice Rogers Brown and Thomas B. Griffith.
Jefferson’s attorneys said in a statement that they were “continuing to study the order and the procedures that recognize the importance of the Speech or Debate Clause.” The Justice Department said it was pleased that the Circuit Court acted expeditiously, adding that “it is clear they understand the importance of moving this matter forward.”
The case is U.S. v. Rayburn House Office Building Room 2113 (docket 06-3105). When the case was at the District Court level, it was styled In the Matter of the Search of Rayburn House Office Building Room Number 2113.” The title in the Circuit Court has a somewhat more confrontational cast to it, making it appear to be an inter-branch dispute with constitutional overtones. (PACER subscribers can call up the text of the order at the Circuit Court’s website, on the docket page for this case; it is order number 983171, dated July 28, 2006. Three days earlier, the Court had issued an administrative stay while it studied the congressman’s motion for an emergency stay.)
While it is conceivable the Justice Department could try to take the issue to the Supreme Court, that seems unlikely at this point and, in any event, very likely would fail.
