Judge: Jefferson Raid Looks Constitutional

Roll Call (subscription required) reports that Judge Thomas Hogan, who approved the search warrant for the FBI raid of Congressman Bill Jefferson's office, has indicated he is likely to rule this week that the warrant and raid were Constitutional:

Jefferson, House Find Raid Case a Hard Sell
June 19, 2006
By John Bresnahan and Paul Kane,
Roll Call Staff

A federal judge on Friday signaled that he was inclined to rule against Rep. William Jefferson (D-La.) and a bipartisan group of House leaders as they challenged the constitutionality of an FBI raid on the Louisiana Democrat’s office last month.
Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia, who approved the search warrant for the FBI raid, said he would file an opinion in the case soon. Several lawyers close to the matter predicted Hogan’s decision could come as early as this week.

Following the session, Hogan spoke to the assembled lawyers and packed courtroom, saying he was “not sanguine about the argument advanced by Mr. Jefferson’s attorney and the House counsel.”

On May 25, President Bush ordered all the materials taken from Jefferson’s office by the FBI to be sealed for 45 days so that the Justice Department and House officials could hold negotiations to resolve the dispute. That deadline expires on July 9.

Hogan also has placed the Jefferson materials under seal, meaning it will not be immediately released to federal prosecutors until the legal battle over the search is resolved, according to Robert Trout, Jefferson’s lawyer. Jefferson is the focus of a wide-ranging Justice Department probe that is looking into allegations of fraud, bribery and conspiracy to bribe foreign officials.

Friday’s extraordinary session pitted the Justice Department on one side and Jefferson’s attorneys, backed by the House general counsel’s office on behalf of Speaker Dennis Hastert (R-Ill.), Minority Leader Nancy Pelosi (D-Calif.) and other House leaders, on the other.

Many of the issues raised during the 90-minute court session were esoteric legal points regarding the Constitution’s Speech or Debate Clause, testimonial privilege for individuals who receive subpoenas as opposed to search warrants, and a recap of past corruption cases in which Members and Senators were prosecuted.

The heart of the legal battle, however, is whether Members of Congress are afforded special protections under the Constitution not granted ordinary citizens. The Justice Department holds that they do not — at least not for behavior that may be criminal in nature — while Jefferson and the House general counsel said they do, to protect Members from intimidation from the executive branch, even if such protections end up interfering with criminal prosecutions.

Hogan’s questioning suggested that Justice’s view was one he was more likely to back in the end.

Trout spoke first, arguing that FBI agents clearly violated the Speech or Debate Clause when they searched Jefferson’s office in the Rayburn House Office Building on May 18, despite the search warrant approved by Hogan. The agents seized several boxes of documents and copied more than a dozen computer hard drives during their search, which began on a Saturday night when the House was out of session. Justice Department officials said the materials had been under subpoena since last August and that Jefferson repeatedly had refused to release them to prosecutors.

After mentioning that the May 18 search was unprecedented in U.S. history, Trout stated that the constitutional privilege afforded lawmakers by that clause is inviolate, and that any search of a Congressional office would be unconstitutional in that it would allow executive branch officials access to legislative materials, even if those materials ultimately were never used in a criminal prosecution.

“Viewing [the documents] alone is a violation of the Constitution?” Hogan asked Trout.

“Yes ... that is unconstitutional,” Trout responded.

Trout added that it was up to any individual lawmaker, not the executive or judicial branches, to invoke the privilege afforded them under Speech or Debate.

“The Congressman has to be the one ... who makes the decision to invoke privilege,” Trout said. The Justice Department has proposed that it will review all materials seized from Jefferson’s office to determine if they are privileged, with a judge making the final decision on any document in question.

But Hogan repeatedly challenged Trout’s arguments during his presentation, suggesting that he “did not understand” the counsel’s reasoning on several occasions.

At one point, Hogan asked Trout whether a search of a lawmaker’s office would be unconstitutional if law enforcement officers thought he or she was hiding five kilos of cocaine in a drawer with privileged materials in it. Trout responded that “You don’t have to look at a document or any document to figure out if it’s cocaine.”

Hogan then asked about “ledgers showing evidence of drug trafficking.” Trout suggested those documents would be privileged, and thus a lawmaker could not be compelled to turn them over...

Perhaps this will hasten the move of the House to compromise with the Administration on the search. House leadership has shown political wisdom to stop complaining loudly about this; perhaps this will lead them to settle the matter promptly.

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