This morning a three judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled Rep. William Jefferson's challenge to the FBI's seizure of material from his office. The opinion for the Court, written by Judge Rogers and joined by Judge Ginsburg summarizes:
This is an appeal from the denial of a motion, filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking the return of all materials seized by the Executive upon executing a search warrant for nonlegislative materials in the congressional office of a sitting Member of Congress. The question on appeal is whether the procedures under which the search was conducted were sufficiently protective of the legislative privilege created by the Speech or Debate Clause, Article I, Section 6, Clause 1 of the United States Constitution. Our precedent establishes that the testimonial privilege under the Clause extends to non-disclosure of written legislative materials. . . . Given the Department of Justice’s voluntary freeze of its review of the seized materials and the procedures mandated on remand by this court in granting the Congressman’s motion for emergency relief pending appeal, the imaging and keyword search of the Congressman’s computer hard drives and electronic media exposed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause, but the review of the Congressman’s paper files when the search was executed exposed legislative material to the Executive and accordingly violated the Clause. Whether the violation requires, as the Congressman suggests, the return of all seized items, privileged as well as non-privileged, depends upon a determination of which documents are privileged and then, as to the non-privileged documents, a balancing of the separation of powers underlying the Speech or Debate Clause and the Executive’s Article II, Section 3 law enforcement interest in the seized materials. The question of whether the seized evidence must be suppressed under the Fourth Amendment is not before us.
We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents. The Congressman has suggested no other reason why return of such documents is required pursuant to Rule 41(g) and, in any event, it is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment against him while this appeal was pending.
Judge Henderson filed a separate opinion concurring in the judgment, which begins:
When all of the brush is cleared away, this case presents a simple question: can Executive Branch personnel—here, special agents of the Federal Bureau of Investigation—execute a search warrant directed to the congressional office of a Member of the Congress (Member) without doing violence to the Speech or Debate Clause (Clause) set forth in Article I, Section 6, Clause 1 of the United States Constitution? The limited United States Supreme Court precedent regarding the applicability of the Clause in the criminal context makes one thing clear—the Clause “does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true.” Gravel v. United States, 408 U.S. 606, 626 (1972) (emphasis added). It appears that neither the Supreme Court nor any inferior court has addressed the question as I view it and the single holding from our court on which the majority almost exclusively relies to answer the question in the negative decides only the Clause’s applicability to a civil subpoena obtained by private parties who sought certain files in the possession of a congressional subcommittee. . . . I believe the question can be directly answered “yes” without resort to dicta or any other indirect support or theory. Accordingly, while I concur in the judgment which affirms the district court’s denial of Representative William J. Jefferson’s (Rep. Jefferson) Rule 41(g) motion, I do not agree with the majority’s reasoning and distance myself from much of its dicta.
I hope to have more on this decision later today.
Related Posts (on one page):
- House Probe of Jefferson Suspended:
- More on Rep. Jefferson's Papers:
- D.C. Circuit Rules for Rep. Jefferson:
There is no constitutional problem in enforcing federal
anti-bribery laws against congressmen, simply because evidence of the bribery may be found in a Congressman’s office.
Jefferson claims that his constitutional immunity for legislative speech or debate attaches to the papers in his office, and thus prevents the FBI from searching
his office.
Taken to its logical conclusion, Jefferson’s argument would prevent law enforcement from searching a judge’s chambers to uncover proof that he raped his secretary, since judges, too, enjoy absolute immunity for judicial
conduct and court rulings. But judicial immunity does not stop such criminals in black robes from being investigated and sent to jail.
Even when writings are protected by the Constitution, that
does not mean the premises on which they are housed are off limits to law enforcement. For example, the periodicals contained in an adult bookstore are speech protected by the First Amendment. But law enforcement can
search the bookstore, and even close it down as a nuisance if prostitution is occurring on the premises.
Immunities for speech and debate logically protect activities, not places. They provide no sanctuary for
law-breakers, nor do they create a Forbidden City off limits to other branches of the government.
The caption of the case is
I have a feeling that Rep. Jefferson and Room 2113 have concurrent, overlapping interests.
Difference is that the Congress actually has a textual basis for their privilege -- there is none for executive privilege, except the Volokhteers' theory that Bush is "Commander in Chief" of the Universe. (By the way, I do not agree with this decision.)
You're kidding, right?
Is there a textual basis for shielding federal judges work product?
Um, was this in dispute? Whoever thought that DOJ can keep the privilged materials???
aldus
All Jefferson got was the return of the privileged documents - but the DOJ wasn't arguing to keep the privileged documents. What Jefferson really wanted, it seems to me, was a return of even the non-privileged documents. And he didn't get that.
Anybody care to shed some light as to how a particular document (or even a particular part of a particular document) gets in one of those categories?
Given that the courts normally disclaim a role as referee between the two branches, I'm not sure why it's constitutionally ok for a judicial branch official to review the privileged documents, but not the executive branch filter team.
Anyway, from what I read of the excerpts, the opinion seems very muddled. The search was unconstitutional, but only to the extent of the seized documents. Ok, fine, that implies that the search can be conducted for non-privileged documents. As a practical matter can the FBI conduct a narrowly-crafted, particularized search and seizure while avoiding any possibility of seeing a privileged document? Are they entitled to box up the entire office and ship it to the judge for review?
As for the question as to what is considered privileged, documents that refer to legislation, votes, committee hearings, etc. would be privileged under S or D.
I believe that, as to this particular case, this is discussed on pp.7-8. The court previously issued an order under which the District Court reviewed all of the seized materials, determined which is privileged and which isn't (after giving Jefferson an opportunity to makes appropriate claims). Accordingly, at this point, there shouldn't be any question as to which documents are privileged and which aren't, unless any of the District Court's determinations have been appealed.
The Court punts on how this is to happen in the future, though, saying (on p. 17) that the legislative and executive branches should figure that out among themselves in the first instance (although, obviously, this "filter team" idea doesn't fly, according to the court).
The clause is the speech and debate clause, which says, “for any Speech
or Debate in either House, [Members of Congress] shall not be
questioned in any other Place.”
The courts, recognizing that this is supposed to create a freer climate for the creation of legislation than had existed under the kings of England, have decided that what the clause really means is that congressmen should be exempt from being "questioned" for any legislative activity at all, and not just for their speeches and debates. Moreover, though the constitution refers only to speech and debate "in either House," the courts have, through their expanded meaning, stretched the protection to an large protective umbrella that seems to follow the legislator around wherever he his working on legislation.
As the court of appeals noted:
"In defining the protections afforded by the Clause, the
Supreme Court has limited the scope to conduct that is an
integral part of “the due functioning of the legislative process.”
United States v. Brewster, 408 U.S. 501, 513 (1972)."
So now, instead of being protected for his speech and debate, Jefferson is protected for "conduct that is an integral part of the 'due functioning of the legislative process.'"
Under current congressional practices, no doubt any bribery in exchange for the introduction of legislation will soon be held to constitute "due functioning of the legislative process."
It's a shame the courts can't just stick to what the damned constitution says, and suggest to the public that if they don't like it they should change it.
I think the concurring opinion has much the better analysis, as I explain here.
The majority blithely disposes of how its rule would work in the real world in any possible future situation. They say that the FBI should have sealed the office (with the Capitol Police), then waited for the Congressman to come and review all the documents in the office, segregating the ones he wishes to assert as privileged. They seem to assume that this will take very little time, and that the Congressman will cooperate with the effort in good faith.
But there's a LOT of paper in a Congressional Office, and even more data on computers. It would take weeks for the Congressman, even with the help of his staff, to review EVERY document. I suppose the computer data could be reduced by running the computerized search first, then having the Congressman review only the documents returned in the search, but no such work-reduction vehicle would be available for the paper office. The FBI cannot assume that the smoking gun will be filed under "B" for "bribe memo." Certainly the FBI has no way of limiting the search for incriminating documentary evidence specified in the search warrant, as it has no way of knowing which precise file cabinet it might be in, and they sure can't take the suspected criminal's word for it.
Moreover, the Congressman is likely to assert that ALL his files are privileged. Jefferson almost certainly would have, given his refusal to comply with the previous subpoenas issued by the FBI and a judge in order to try to avoid issuing a search warrant in this sensitive case. Thus, the majority's opinion should have acknowledged forthrightly that it's rule would likely ultimately require the FBI to box up the ENTIRE office and cart it down to the courthouse for the judge to review.
A search warrant is captioned [Government] v. [Place to be searched]. This is not a Motion to Suppress in the criminal case ([Government] v [Defendant]). It is an action (brought in the case in which the warrant was issued, directly attacking the warrant and the service of the warrant.
Instead, the Department of Justice, by procuring a search warrant ex parte, engaged in hotdogging, which necessitated that the privilege claims be considered only after a questionable intrusion into a congressional office. That is unfortunate.
The DOJ gets a search warrant and seals the place off (electronically as well as physically). The court then appoints a special master to search for all the documents the prosecution wants, subject to review by the presiding judge if the congressperson asserts privilege.
The whole process doesn't seem all the complicated, except for the obstructionism on the one hand and the heavy-handedness on the other.
Had they said "we know this means that the Congressman's office next time will be shut down entirely for several days or weeks, while a court-appointed neutral party actually conducts the search authorized in the warrant," then they would have at least acknowledged the reality. Instead, they blithely bounced passed that, acting as if the Congressmen would willingly assert only a narrow privilege claim, or that the government would take his word about where the incriminating documents are not.
If that congressperson wants to annoy the judge with frivolous claims of privilege or other obstructionist bullshit that's just plain stupid. At any rate, I would assume that a competent special master would be able to sift through the majority of those claims of privilege on-the-spot.
Personally, I'd go beyond this court and adopt a more absolutist position: Agents of the Executive branch may not enter Congressional buildings without the permission of the Legislative branch. After all, Congressional employees are not allowed to barge into the White House and start rifling through all of the Executive branch's papers--and "executive privilege" isn't even in the Constitution, while "legislative privilege" is.