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.

Paul Kiel provides the text [PDF] of the ruling:

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.

FILED UNDER: Congress, Law and the Courts, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. legion says:

    A bizarre ruling, given that the raid was executed pursuant to a warrant under an ongoing criminal investigation.

    Indeed. I haven’t seen much specific about the warrant, but if this was so blatantly unconctitutional, you’d think that would have come up when the warrant was being signed by a judge…

  2. Bithead says:

    Lemme guess… the judge who issued the rling was an Clinton Appointee.

  3. markm says:

    …well get that man a commitee chairman job!!!…c’mon Nancy, what’s the holdup?.

  4. Michael says:

    Lemme guess… the judge who issued the rling was an Clinton Appointee.

    The Judges were:

    Chief Judge:
    Ginsburg (1986 – Reagan)

    Circuit Judges:
    Henderson (1990 – Bush Senior)
    Rogers (1994 – Clinton)

    Ginsburg issued the ruling.

  5. Michael says:

    Ginsburg issued the ruling.

    Sorry, Rogers issued the ruling, not Ginsburg. Still it’s 2 Republican appointees and one Democrat.

  6. Michael says:

    Indeed. I haven’t seen much specific about the warrant, but if this was so blatantly unconctitutional, you’d think that would have come up when the warrant was being signed by a judge…

    From skimming the ruling, it seemed that the warrant was issued to seize unprivileged information, while the FBI took privileged information as well. Only the privileged information is having to be returned.

  7. PatHMV says:

    As I discuss here, I think the concurring opinion is much better than (and dramatically at odds with) the majority opinion. The majority blithely tosses off a couple of hypothetical processes that the FBI could follow to search a Congressman’s office, but they all either implicitly assume an honest Congressman working in good faith to assert only warranted privileges, or would ultimately force the FBI to blindly seize all computers and file cabinets and bring them to the judge to review for privilege. The majority opinion would be utterly impractical to follow in real life, where a crooked Congressman could very easily stash the smoking gun letter showing his guilt in an envelope marked “memos debating legislation with other congressmen.”

  8. Bithead says:

    Sorry, Rogers issued the ruling, not Ginsburg. Still it’s 2 Republican appointees and one Democrat.

    Two centerists and a leftist.
    What passes for balance, today.

  9. Grewgills says:

    Bit,
    According to you Reagan and Bush are the Center and Clinton is the left? Where is the right in your universe?

    Bush 41 and Clinton were center right and center left respectively. Clinton was certainly not ideologically or by policy further from the center than was Bush 41. If Bush 41 was further to the right than Clinton was to the left it was not by much. Reagan’s policies were further from the center than either of their’s, but had the charisma and discipline to push them through.