How much do you want to bet this was a Clinton appointed judge?
And he's still walking around free while our border patrol officers sit in prison after shooting an illegal alien drug smuggler.
Is anyone surprised?
I hope the ruling elite keep this crap up in DC until the entire country is so fed up with this corruption that...
The way I understand this, the ruling only applies to the legislative papers that did not directly apply to the search. This appears to be a fairly narrow ruling here, and ought not be interpreted as a victory for Jefferson in any way.
Ginsburg and Henderson are both Republicans; Rogers is a Clinton appointee who once worked in the Nixon Administration.
Of course. Says so right there in the constitution, “Congressional felons are above the law.” Bribery? What bribery?
Unlike we lowly scum, the elitist politicians are above the law. They are better than the rest of us. These so-called “judges” say so. Don’t give me the “Constitutional” crap. These “judges” haven’t got a clue about what is in the Constitution. They are just protecting the hideouts of their political pals. Politicians need a safe place, that is off limits to the law, where they can stash their loot (and other things)!
Fox actually has the headline wrong. The search was constitutional, portions of the seizure weren’t. In the future, they could do essentially the same thing, but instead of reading the documents, scoop them up and take them to a judge for review.
So what is with the headline? What is this, a John Kerry before and after moment?
But nobody violated the Constitution when over 900 FBI files were taken to the White House.
I guess it’s true. Nobody does hear that tree in the forest.
Interesting...
But does nothing to stop the process of bringing charges based upon the cash found in his home. It may take away some evidence that may have been in his office that would support the charges....
This title is very misleading. The Court did not rule that the search was unconstitutional - only that they were not allowed to search his sensitive legislative papers.
The court held that, while the search itself was constitutional, FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.
Naturally, the AP headline is a fraud.
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?
Ummm, yas! I perceive that congressman Jefferson is a upstanding citizen. No doubt in my mind!!
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 Justices voluntary freeze of its review of the seized materials and the procedures mandated on remand by this court in granting the Congressmans motion for emergency relief pending appeal, the imaging and keyword search of the Congressmans 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 Congressmans 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 Executives 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 Jeffersons 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 courts 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 Courts 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 Nations 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 sovereigns 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 Congressmans office by allowing agents of the Executive to view legislative materials without the Congressmans 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 Executives 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 Congressmans 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 Circuits 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 DiBellas 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 Congressmans 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 Congressmans] 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]
From THEIR story:
"The court held that, while the search itself was constitutional, FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business."