Posted on 08/03/2007 3:34:45 PM PDT by Revel
WASHINGTON — The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson's office last year and viewed legislative documents in a corruption investigation, a federal appeals court ruled Friday.
The court ordered the Justice Department to return any legislative documents it seized from the Louisiana Democrat's office on Capitol Hill. The court did not order the return of all the documents seized in the raid and did not say whether prosecutors could use any of the records against Jefferson in their bribery case.
Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Constitution prohibits the executive branch from using its law enforcement powers to interfere with the lawmaking process. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker's documents.
(Excerpt) Read more at foxnews.com ...
This ruling is very damaging to the FBI ~ if the FBI has become so dependent on raiding Congressional offices that it can no longer work a fraud case.
Wouldn't be surprised that the FBI can no longer function without black bag jobs.
Yes, the Constitution says that Congressman may run criminal enterprises from the safe haven of their congressional offices, and there’s nothing anybody can do about it.
I guess seeing someone in public office taking bribes (on video) is not probable cause, yet a simple exchange of a small package on a parking lot is?
Oh...Who's payroll are they on?
Whose payroll?
I hear an echo...
Not the Presidents Fur Shur.
No..they aren't.
Let me make it simple for you..Congress is not on the Federal payroll?
Yes or no?
Ummm, yas! I perceive that congressman Jefferson is a upstanding citizen. No doubt in my mind!!
You bet.
Which means, of course, that constituent letters were untouchable as were secret messages from the then Democrat majority leader in the House, or other Democrat caucus officers.
FBI didn't care ~ they read your mail anyway. It's still yours years after you send it to somebody you know.
Did they get a warrant on probable cause that your correspondence to this guy was part of a crime?
What you have here is a court that made the minimum decision possible to allow the cops to look at some of Jefferson's stuff while not also suggesting that the cops broke the law and should be punished (which is what I think the Supreme Court will say whenever it gets this or a similar case).
Members of a corporate Board of Directors are also not generally considered company employees although they may well receive payment from the company.
BTW, you don't own every Representative, just the one who represents you.
Who's payroll are they on?
When you pay your grocery bill that does not make the cashier your employee. He or she is not on your payroll.
Your point is meaninless and without relevance to this debate.
That's my take on it also. It wasn't even entirely an issue of taking the papers as it was about taking them before Jefferson could make a defense against taking them.
Who's payroll are they on?
Give a shot slick.
This ruling makes no difference. There is no way a DC jury is going to convict Jefferson. Libby they will, but a Black Democrat? No way.
You appear to be unaware of how Congress is paid.
Before: GINSBURG, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.Opinion for the Court filed by Circuit Judge ROGERS.
Opinion concurring in the judgment filed by Circuit Judge HENDERSON.
ROGERS, Circuit Judge: 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 non-legislative 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. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). 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...............
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Although the search of Congressman Jefferson’s paper files violated the Speech or Debate Clause, his argument does not support granting the relief that he seeks, namely the return of all seized documents, including copies, whether privileged or not. Taking his assertions in reverse order, such relief is unnecessary to deter future unconstitutional acts by the Executive. There is no indication that the Executive did not act based on a good faith interpretation of the law, as reflected in the district court’s prior approval and later defense of the special procedures set forth in the warrant affidavit. While the Fourth Amendment issue is not before us, the Supreme Court’s instruction in United States v. Leon, 468 U.S. 897 (1984), is relevant to the extent the Congressman invokes deterrence as a rationale for the remedy he seeks under Rule 41(g). In addressing application of the exclusionary rule in the context of the Fourth Amendment, the Supreme Court pointed out in Leon that “[p]articularly when law enforcement officers have acted in objective good faith [on a warrant issued by a neutral magistrate] or their transgressions have been minor,” the possible benefit from exclusion, in terms of future deterrence, is limited, 468 U.S. at 907-08. Additionally, with respect to concern about future actions by the Executive, this is the only time in this Nation’s history that the Executive has searched the office of a sitting Member of Congress. Our holding regarding the compelled disclosure of privileged documents to agents of the Executive during the search makes clear that the special procedures described in the warrant affidavit are insufficient to protect the privilege under the Speech or Debate Clause. This too should ameliorate concerns about deterrence.
At the same time, the remedy must give effect not only to the separation of powers underlying the Speech or Debate Clause but also to the sovereign’s interest under Article II, Section 3 in law enforcement. The following principles govern our conclusion. The Speech or Debate Clause protects against the compelled disclosure of privileged documents to agents of the Executive, but not the disclosure of non-privileged materials. Its “shield does not extend beyond what is necessary to preserve the integrity of the legislative process,” Brewster, 408 U.S. at 517, and it “does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions,” id. at 528. This particular search needlessly disrupted the functioning of the Congressman’s office by allowing agents of the Executive to view legislative materials without the Congressman’s consent, even though a search of a congressional office is not prohibited per se. Still, the Congressman makes no claim in his brief, much less any showing, that the functioning of his office has been disrupted as a result of not having possession of the original versions of the non-privileged seized materials. Most important, to construe the Speech or Debate Clause as providing an absolute privilege against a seizure of non-privileged materials essential to the Executive’s enforcement of criminal statutes pursuant to Article II, Section 3 on no more than a generalized claim that the separation of powers demands no less would, as the Supreme Court has observed, albeit as to a qualified privilege, “upset the constitutional balance of ‘a workable government.’” Nixon, 418 U.S. at 707 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). The Supreme Court has instructed that the Clause is to be applied “in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government.” Brewster, 408 U.S. at 508; see Fields, 459 F.3d at 9.
Applying these principles, we conclude that the Congressman is entitled, as the district court may in the first instance determine pursuant to the Remand Order, to the return of all materials (including copies) that are privileged legislative materials under the Speech or Debate Clause. Where the Clause applies its protection is absolute. For the reasons stated, absent any claim of disruption of the congressional office by reason of lack of original versions, it is unnecessary to order the return of non-privileged materials as a further remedy for the violation of the Clause. The Congressman has suggested no other reason why return of the non-privileged 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. Unlike the Congressman’s request for the return of legislative materials protected by the Speech or Debate Clause, the further claim for the return of all non-privileged materials is not independent of the criminal prosecution against him, especially if the legality of the search will be a critical issue in the criminal trial. See In re 3021 6th Ave. N., 237 F.3d at 1041 (citing DiBella v. United States, 369 U.S. 121, 131-32 (1962)); In re Search of the Premises Known as 6455 South Yosemite, 897 F.2d 1549, 1554-56 (10th Cir. 1990); United States v. Mid-States Exchange, 815 F.2d 1227, 1228 (8th Cir. 1987) (per curiam). We agree with the Ninth Circuit’s holding that the 1989 amendment to Rule 41, eliminating the coupling of a motion for the return of property under Rule 41 and a motion to exclude evidence at trial, FED. R. CRIM. P. 41(g), does not affect DiBella’s controlling force, which balanced the individual and government interests and their relationship to trial delays or disruptions, 369 U.S. at 124, 126, 129; see, e.g., In re 3021 6th Ave. N., 237 F.3d at 1041. See generally 15B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3918.4 (2d ed. 1992). Although the Congressman’s further request is solely for the return of property, his Rule 41(g) motion is “tied to a criminal prosecution in esse against the movant,” DiBella, 369 U.S. at 132; it is of no moment that the indictment was filed in another district, id. The fact that the prosecution has commenced “will afford . . . adequate opportunity to challenge the constitutionality of the search of his . . . office,” and hence “there is now no danger that the [Executive] might retain [the Congressman’s] property indefinitely without any opportunity . . . to assert on appeal his right to possession”; hence there is “no basis upon which to grant piecemeal review of [his further] claim [for non-privileged materials].” United States v. Search Warrant for 405 N. Wabash, Suite 3109, 736 F.2d 1174, 1176 (7th Cir. 1984).
Accordingly, we hold that the Congressman is entitled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate Clause seized from Rayburn House Office Building Room 2113 on May 20-21, 2006. Further, as contemplated by the warrant affidavit, see Thibault Aff. ¶¶ 137-38, the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or “politically sensitive and non-responsive items,” id. ¶ 138, and they shall not be involved in the pending prosecution or other charges arising from the investigation described in the warrant affidavit other than as regards responsiveness, id. [end excerpt]
Understanding anything is possible, you could be right. I’ll reserve judgment until the appellate court rules.
Still, I will hold to the Constitution and precedents I have read in the past that said this was legal. The intent was always to protect congressional work but never to cover up illegal wrong doing or illegal activities. The US Post Office scandal in the House would probably back that up although I did not look it up.
This sort of thing always brings out the argument between the executive and legislative branches and it is not always a party issue. Bush was stupid, IMHO, to not prosecute the Democrats White House vandalism when he took office, but he didn’t. Just another example of Democrats believing they will not be held accountable no matter what they do.
I have no idea how Congress is paid. I only asked if they were on the Federal payroll. I would guess they are.
You appear to be unaware of how Congress is paid.
~~~~~~~~~~~
I know I am.
It’s my understanding the FBI is also a little confused. I think this is precisely what the FBI was trying to resolve when they raided *somebody’s* office. Now that this raid is deemed against the rules, I guess we are to understand we are not allowed to know how they are paid. The FBI and us peons have been smacked down. Shame on us for such tawdry insolence.
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