Supreme Court declines Capitol Hill search and seizure case

Court of Appeals determined Federal agents violated the Constitution's speech or debate clause when they seized documents from the office of Rep. William Jefferson of Louisiana.

By , Staff writer of The Christian Science Monitor

The US Supreme Court has declined to take up a case examining whether federal agents investigating corruption in Congress can seize thousands of documents from a lawmaker's office without violating the Constitution's speech or debate clause.

On Monday, the high court said it would not hear an appeal of a case involving the bribery investigation of Rep. William Jefferson (D) of Louisiana. At issue was whether US agents violated a constitutional safeguard when they searched Mr. Jefferson's office in May 2006, and seized 47,000 pages of documents – including papers related to the congressman's legislative work.

The high court's refusal to hear the case means that an August 2007 decision by a federal appeals court panel in Washington will remain in place. The appeals court ruled that federal agents violated the speech or debate clause when they conducted a wide-ranging search of the congressman's Capitol Hill office.

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The search marked the first time a congressional office was raided by the Federal Bureau of Investigation. And it raised a specific legal question that has never been addressed by the Supreme Court, analysts say.

Section I, Article 6 of the Constitution says in part: "For any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place."

The clause is designed to enforce the separation of powers and to promote robust speech, debate, and deliberation in the legislative branch of government without intimidation or threats from the executive branch. Members of Congress may not be harassed or prosecuted for things they say or official acts related to the legislative process.

But influence-peddling, bribery, and other forms of corruption are not protected by the speech or debate clause.

The central question in the appeal had been whether federal agents investigating suspected corruption are entitled to scoop up all the documents in a congressional office or just those documents unrelated to legitimate legislative acts.

A federal judge upheld the FBI search and seizure. But the US appeals court panel ruled against the agents, saying they violated the speech or debate clause by failing to afford Congressman Jefferson an opportunity to dispute which of his office documents must remain private and which documents can be seized.

In urging the high court to take up the case, Deputy Solicitor General Gregory Garre said the appeals court had wrongly extended the speech or debate clause protections to cover search warrants. "The speech or debate clause by its terms protects 'speech or debate;' it does not protect against the disclosure of information through a criminal search warrant, which involves no questioning of a member of Congress," Mr. Garre said in his brief to the court.

"Only this court can resolve this important question," he said. "Until it does so, investigations of corruption in the nation's capital and elsewhere will be seriously and perhaps even fatally stymied."

Jefferson's lawyers dismissed the government's comments as hyperbole. "[Justice Department] claims that the court of appeals' decision will jeopardize other investigations or the use of other investigative techniques are substantially exaggerated," said Robert Trout in his brief urging the court not to take up the case.

Mr. Trout said the issue was not whether all searches of congressional offices were barred. The real question, he said, was whether the FBI's search procedures were sufficiently protective of the legislative privilege created by the speech or debate clause.

"A finding that the speech or debate clause does not include a non-disclosure privilege would permit exactly what the clause was designed to prevent: a politically motivated investigation involving the execution of search warrants expressly aimed at legislative documents," Trout wrote.

"Never before in the history of this country has the executive branch deemed a search of a congressional office to be necessary to achieve the goals of law enforcement," Trout said.

A targeted member of Congress should be permitted to review the potential documents to determine which should be withheld or turned over to the agents, Trout said. This effort could be monitored by a federal judge.

But government lawyers complained that the judicially monitored system set up by the courts in the Jefferson case was not proceeding fast enough to be useful to investigators.

"The executive seeks only unprivileged evidence of criminal conduct, and it would come into only cursory contact with any privileged materials in the course of searching for unprivileged ones," Garre wrote.

Safeguards already exist to prevent politically motivated investigations, Garre said. Among them, a neutral magistrate must issue the search warrant and may do so only after finding probable cause to believe a crime has been committed.

The investigation of Jefferson brought national headlines with the disclosure that federal agents discovered $90,000 hidden in food boxes in the Congressman's home freezer. The reports prompted jokes about cold cash. Federal officials said serial numbers on the bills matched the numbers of $100,000 that had been delivered in a suitcase to Mr. Jefferson days earlier by a witness cooperating with the government in the investigation. The money was to be passed by Jefferson to a Nigerian official, according to investigators.

Congressman Jefferson denies any wrongdoing and has said he will fight to clear his name.

The search of Jefferson's office came after investigators said they discovered evidence that the congressman's family had received shares of a Nigerian company and more than $400,000 in cash in exchange for Jefferson's help promoting the company in Washington.

Federal agents had attempted to obtain the relevant documents from Jefferson through subpoenas. When the effort failed more than a dozen agents arrived at Jefferson's office armed with a warrant to seize documents and copy computer hard drives. The search began Saturday night, May 20, 2006, and continued for 18 hours.

Word of the raid sparked a loud and bipartisan outcry among members of Congress who said federal agents had overstepped their authority by invading the domain of a co-equal branch of government. President Bush entered the fray, ordering all the seized material to be sequestered until the matter could be resolved. Although the office documents remained out of reach to federal investigators, the Jefferson investigation continued.

Despite publicity surrounding the ongoing corruption investigation, Jefferson was reelected in November 2006.

In June 2007, he was named in a 16-count indictment. The charges include soliciting bribes, racketeering, obstruction of justice, money laundering, and conspiracy.

His trial was scheduled to begin in February, but it has been delayed by a pre-trial appeal.

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