- The Washington Times - Monday, July 24, 2006

As William Shakespeare would have versified, Rep. William J. Jefferson, Louisiana Democrat, deserved Speech or Debate Clause protection from an FBI raid of his congressional office not because congressional misconduct should be punished less but because the Constitution’s separation of powers that safeguard an uncowed legislative branch should be loved more.

Accordingly, U.S. District Judge Thomas F. Hogan stumbled in In the Matter of the Search of: Rayburn House Office Building Room No. 2113, Washington D.C. 20515 (July 10, 2006) by upholding the FBI’s wholesale examination of Mr. Jefferson’s office that clued the Executive Branch to the congressman’s legitimate legislative communications or tactics.

The Speech or Debate Clause, Article I, section 6, clause 1, creates a sanctum sanctorum for members of Congress, not to foil criminal prosecutions but to encourage robust congressional scrutiny or regulation of the executive or judicial branches without fear of retaliation. The Clause declares a member “shall not be questioned in any other Place” for legislative acts.

The U.S. Supreme Court amplified in United States v. Johnson (1966): “The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the ‘practical security’ for ensuring the independence of the legislature.” It works to strengthen the institution of Congress by ensuring the independence of individual legislators. While members may be prosecuted for bribery or other crimes, the prosecutions cannot employ investigatory methods that would violate the Speech or Debate Clause’s sanctum sanctorum.

Mr. Jefferson has been under investigation for bribery and sister crimes for more than one year. He is alleged to have exploited his position in Congress to promote the sale of telecommunications equipment and services offered by iGate — a Louisiana telecommunications business — to Nigeria, Ghana and possibly other African nations, in exchange for stock and cash.

A former staff member has pleaded guilty to bribing and conspiring to bribe the congressman. The president and chief executive officer of iGate has pleaded guilty to the same offenses. The FBI has seized $90,000 in cash from the congressman’s freezer. A mini-trial has been conducted in the newspapers, and Mr. Jefferson has been found guilty. The Democratic leadership in the House of Representatives has removed him from a coveted committee slot.

In sum, the FBI investigation of the congressman had been moving forward on 20 cylinders when a search warrant was sought and obtained from Judge Hogan for the first time in the nation’s history to read all his office files, not to seize cash or contraband. This invasion of the sanctum sanctorum was gratuitous.

Members of Congress have been regularly investigated and successfully prosecuted for 217 years without searching through legislative files for documents. Examples include Dan Rostenkowski or the Abscam scofflaws. If a warrant to search a member’s offices for documents were more than a marginal investigatory tool, the tactic would not have lain dormant for more than two centuries.

Moreover, the warrant was granted by the judicial branch, which was every bit as suspect in the eyes of the Speech or Debate Clause as the executive. And the execution of the warrant was every bit as sacrilegious to the Constitution as were the money-changers to the Temple. More than a dozen FBI agents over 18 hours reviewed every file and every piece of paper in the congressman’s office, and copied and carried away the hard drive of each of the computers used by the congressman and every member of his legislative staff.

Privileged legislative communications were exposed to the executive investigators, i.e., a so-called “filter team” of two Justice Department attorneys separate from the prosecution team and an FBI agent with no role in the investigation. They read each document and hard drive to determine which materials were responsive to the warrant and which fell within the Speech or Debate Clause. The execution of the warrant thus made the Bush administration privy to Mr. Jefferson’s legislative deliberations in violation of the Speech or Debate Clause.

That conclusion should not be troublesome. Congress reciprocally is not empowered to examine the internal deliberations of the White House or the Supreme Court (absent an extraordinary need) to prevent compromising the Constitution’s separation of powers.

Judge Hogan unpersuasively insisted, “Congress’ capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants, which are only available in relation to criminal investigations, are subject to the rigors of the Fourth Amendment, and require prior approval by the neutral third branch of government.”

But as then-Attorney General Robert Jackson suggested as long ago as 1940, the endless technical laws on the books invite a president to choose a political enemy and task the Justice Department to investigate with search warrants or otherwise in hopes of pinning an offense on him. A hostile judiciary might readily acquiesce.

Suppose the House Judiciary Committee is investigating a president for impeachable offenses. To defend and to retaliate, the president directs the Justice Department to obtain warrants to search the offices of every committee member, which contain evidence of allegedly impeachable offenses, under the guise of investigation campaign finance violations. In executing the warrants and viewing the evidence, the executive branch would be obstructing a major legislative function — holding the president accountable for high crimes and misdemeanors.

It is conceivable that once in every two or three centuries a member of Congress might circumvent justice because of the Speech or Debate Clause. But what a tiny price to pay for an independent Congress that desperately needs more rather than fewer vertebras to stand up to the White House.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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