Federal prosecutors this week won their case against former US Rep. William Jefferson, who is expected to go to jail for bribery and public corruption. But there's a bittersweet quality to their victory: In the end, the legacy of this case may be that members of Congress actually gained protections from corruption investigations.
Mr. Jefferson – a nine-term Democrat from Louisiana before he was voted out of office in 2008 – became famous for stashing $90,000 in marked bills in his home freezer. But he also gained notoriety as the first member of Congress to have his office raided by the FBI.
The raid was later repudiated by the courts – which backed up congressional leaders' contention that such intrusions gave the executive branch access to constitutionally protected materials related to a lawmaker’s official duties, including floor speeches and committee work.
“The search of Jefferson’s Rayburn House office is having serious repercussions for all other criminal prosecutions for members of Congress,” says Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), which is tracking investigations of 16 members of Congress.
Advance notice of a search
The Jefferson case prompted congressional leaders to take a very expansive interpretation of the “speech and debate” clause of the US Constitution, which protects lawmakers from prosecution for their legislative activities. The US Circuit Court of Appeals for the District of Columbia ruled that a member of Congress must be provided advance notice and the right to review materials before a search is conducted, and the US Supreme Court refused to hear the appeal.
“It is now very difficult [for law enforcement] to [wire]tap a member of Congress and be sure [that lawmaker] will never have a conversation about what happened on the floor or in committee,” says Ms. Sloan.
At the time of the FBI raid in May 2006, then-House Speaker Dennis Hastert and
Democratic leader Nancy Pelosi jointly declared it a violation of separation of powers in that it gave federal investigators unconstitutional access to a lawmaker's privileged materials.
“This was the case of the Department of Justice making bad law for itself,” says Jonathan Turley, a professor at George Washington University Law School here. “This was a very thuggish and amateurish raid conducted on an office of Congress. The result was to make Jefferson a victim and to radically increase the delays and cost in the case.”
The post-Jefferson standard is now being tested in the courts in the case of former Rep. Rick Renzi (R) of Arizona, who is contesting evidence from a wiretap that included a conversation related to official business.
The new threshold for federal investigators is that “not only can’t you use it, you can’t accidentally see it,” adds Ms. Sloan. “That is a very expansive view of the ... Constitution."
A boost for Justice Department
Still, the Justice Department did win a conviction in the case – though not on all the counts. It was a much-needed win, after the department's embattled public integrity section had to drop a high-profile corruption case against former Sen. Ted Stevens (R) of Alaska in April, after failing to disclose evidence to the defense.
“It was important for the Justice Department to win this case because of the Stevens case and all the problems that surrounded that prosecution. Now, they can claim that they legitimately won a substantial victory,” said Carl Tobias, a law professor at University of Richmond School of Law in Virginia.
Indeed, that's what Justice did.
"Congressman Jefferson had a contract with the citizens of Louisiana and the citizens of the United States," said US Attorney Dana Boente, in a press briefing after the guilty verdict Wednesday. "The citizens were owed honesty and integrity, and he used his influence and power to enrich himself and his family."
Jefferson was convicted on 11 counts of corruption over business dealings in Africa. He faces a 20-year jail sentence.
Jefferson’s lead attorney, Robert Trout, had argued that his client’s business dealings fell into a “gray area” of ethical violations but were not criminal or related to his official duties as a congressman.
In the end, the cash in the freezer figured in none of the convictions announced Wednesday in the US District Court in Alexandria, Va. These included bribery, racketeering, money laundering, and wire fraud.
“The two most interesting elements in the case – the money in the freezer and the foreign dealings – both ended up in acquittals,” says Mr. Turley.
CREW applauded the convictions. “Accepting Mr. Jefferson’s argument that ... [what he did] was not bribery would have left members of Congress free to sell their services to the highest bidder,” Sloan said in a statement.
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