Serving in the U.S. Congress has its privileges. The Framers of the Constitution, worried about the Executive branch using its police power to intimidate the Legislative branch, gave legislators special protection in Article I, Section 6:
Senators and Representatives…shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Supreme Court precedent holds that the Speech or Debate clause applies not just to public records but also to confidential bill drafts, memos between legislators and staff, and other private documents incidental to the job of lawmaking. So when the FBI raided the office of Rep. William Jefferson (D-Louisiana) last weekend, it was well aware of the potential constitutional issues. It had tried other methods of obtaining the documents relevant to its criminal investigation of Rep. Jefferson, including a subpoena that Rep. Jefferson refused to comply with. A Jefferson staffer told investigators that records relevant to the investigation were in the Representative’s office. So the FBI designed a multi-step procedure to search the office while keeping politically sensitive material hidden from investigators’ eyes — or as the warrant request puts it, to “ensure the prosecution team does not inadvertently review any potentially politically sensitive, non-responsive items in the office, or information that may fall within the purview of the Speech or Debate Clause privilege, or any other pertinent privilege.”
First, the physical search would be conducted by FBI agents who are not involved in the investigation, and who would swear in writing not to reveal anything politically sensitive and unrelated to the investigation that they might see in Rep. Jefferson’s office. These non-case agents would then hand records over to a “Filter Team,” whose only role before or after their appointment would be to double-check for anything that may run afoul of the Speech or Debate clause or any other privilege. They would log the date, recipient, sender, and subject matter of anything they found that raised a red flag, turn those logs over to Jefferson’s lawyers, and submit the questionable material to the judge to determine whether it was in fact privileged and therefore excluded from evidence.
Congressional leaders’ loud objections to the search of Jefferson’s office — they have demanded that the seized material be returned — are plainly grounded largely in ignorance. According to yesterday’s New York Times, Speaker Dennis Hastert has “said the F.B.I. agents involved in the search should be taken off the case.” The Speaker apparently doesn’t know that the search was conducted by agents who aren’t on the case. Among legal commentators searching for a plausible constitutional argument against this search, some have wondered whether searches must be conducted by Legislative rather than Executive branch officers. But leaders’ statements don’t seem to suggest they’ve thought that deeply about the issue, or that they even have the factual information necessary to do so.
President Bush has sealed the seized material for 45 days, saying that “it is clear these differences will require more time to be worked out.” The behavior of Congressional leaders suggest they may be too feeble-minded to grasp the basics of the case even in that time.
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