FBI Raid on Jefferson’s Office Unconstitutional
A federal judge has ruled that the FBI raid on Rep. William “The Freezer” Jefferson’s office was unconstitutional. AP’s Matt Apuzzo:
The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson’s office last year and viewed legislative documents, a federal appeals court ruled Friday. The court ordered the Justice Department to return any privileged 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.
Jefferson argued that the raid trampled on congressional independence. The Justice Department said declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker’s documents.
The U.S. Court of Appeals for the District of Columbia Circuit sided with Jefferson on the constitutional issue. “The review of the Congressman’s paper files when the search was executed exposed legislative material to the Executive,” and violated the Constitution, the court wrote. “The Congressman is entitled to the return of documents that the court determines to be privileged.”
A bizarre ruling, given that the raid was executed pursuant to a warrant under an ongoing criminal investigation. The courts have previously held that Congress can compel executive officials, including the president, to cooperate in criminal inquiries; it’s hard to imagine a rationale whereby federal law enforcement agencies, with judicial approval, can’t search a legislative office.
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.
More on this later after seeing what legal experts say about the ruling.
UPDATE: Volokher Jonathan Adler doesn’t yet have an analysis up but his link to the reports and opinions has generated interesting commenter discussion, including at least one who thinks this is a LOSS for Jefferson since FBI gets to keep the non-privileged documents.