Rule Of Law Prevails Despite Democrats Efforts

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An FBI raid on a Louisiana congressman's Capitol Hill office was legal, a federal judge ruled Monday.

Chief U.S. District Judge Thomas F. Hogan said members of Congress are not above the law. He rejected requests from lawmakers and Democratic Rep. William Jefferson to return material seized by the FBI in a May 20-21 search of Jefferson's office.

In a 28-page opinion, Hogan dismissed arguments that the first-ever raid on a congressman's office violated the Constitution's protections against intimidation of elected officials.

"Congress' capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants," said Hogan, who had approved the FBI's request to conduct the overnight search of Jefferson's office.

And now let the examinations of the good seized begin since the "cooling off" period President Bush ordered expired yesterday.

Jefferson's whole argument was that the search warrant was not valid since the search may inadvertently capture lawful "privileged" congressional documents. Jefferson brought up the Speech and Debate clause which states that elected officials cannot be questioned by the President, Prosecutor, or Plaintiff in a lawsuit about their legislative work.

To that argument the Judge said "Phooey: (citations removed, see the whole ruling here)

The fact that some privileged material was incidentally captured by the search does not constitute an unlawful intrusion. The Speech or Debate Clause is not undermined by the mere incidental review of privileged legislative material, given that Congressman Jefferson may never be questioned regarding his legitimate legislative activities, is immune from civil or criminal liability for those activities, and no privileged material may ever be used against him in court.

Amicus contends that even a review of the documents by the Court to determine privilege is unconstitutional. Contrary to the arguments of amicus, legislators do not have the right to determine the scope of their own privilege under the Speech or Debate Clause. The Founders expressly rejected a constitutional proposal that would have permitted Members collectively to be the exclusive judges of their own privileges.

In opposition to the proposal, Madison explained that it would be preferable "to make provision for ascertaining by law" the extent of privileges "previously & duly established" rather than to "give a discretion to each House as to the extent of its own privileges." Id. Indeed, it is the Judicial Branch that ascertains the requirements of the law in accordance with Article III of the Constitution.

The cases that address how to remedy the improper use of protected legislative material in a criminal prosecution support the proposition that the mere disclosure of Speech or Debate material to the Government does not offend the Constitution, as in those cases, privileged material had certainly been exposed to the Government. The remedy imposed in those cases was simply that the material was excluded from use against a Member of Congress.

The Government went out of it's way to make sure the Speech and Debate clause was not violated, going so far as to have a "filter" team of agents not involved in the investigation to filter the documents prior to handing them over, and a separate filter team just for the computer files:

The application also set forth a set of "special search procedures" to be used in an effort to "minimize the likelihood that any potentially politically sensitive, non-responsive items" would be disclosed, and also to prevent investigators and members of the Prosecution Team from obtaining documents or files "that may fall within the purview of the Speech or Debate Clause . . . or any other pertinent privilege." These procedures involved the designation of a Filter Team, which was composed of two Department of Justice attorneys who were not on the Prosecution Team and an FBI agent who had no role in the investigation or prosecution of the case.

For paper documents, the Filter Team would review the documents seized to determine first whether each document was responsive, and second whether it fell within the purview of the Speech or Debate Clause or any other privilege. Any documents found to be non-responsive would be returned to counsel for Congressman Jefferson.

As to the potentially privileged documents, a log and copies thereof would be provided to Congressman Jefferson's counsel within twenty days of the search. The Filter Team would then submit the documents to the Court for a final determination of privilege. Copies of documents that were found to be responsive and unprivileged would be provided to the Prosecution Team and to Congressman Jefferson's counsel within ten days of the search.

As to computer files, another designated Filter Team (made up of certified FBI computer examiners who had no role in the investigation or prosecution of the case) would perform the search of the computers, subject to the terms laid out in the warrant application. Again, the Filter Team would screen out non-responsive and potentially privileged files in the same manner as was to be done with the paper documents.

No matter how you cut this, Jefferson will not win this appeal. No member of Congress is allowed to make his office inside the halls of the Capitol Building a sanctuary where no one can touch him or her.

Recall that Pelosi and Hastert were a bit ticked off when the search happened:

WASHINGTON (CNN) – Though no one actually defended embattled Rep. William Jefferson, House Minority Leader Nancy Pelosi joined House Republicans on Wednesday in expressing outrage over the FBI's recent search of the congressman's legislative office.

Pelosi, D-California, and House Speaker Dennis Hastert, R-Illinois, released a joint statement Wednesday saying that the FBI should immediately return all documents it "unconstitutionally seized" Saturday from Jefferson's office.

Now Pelosi is saying that "hey, no one is above the law, but we lawmakers need special privileges apart from the normal joe"

"No one is above the law and no Members of the House can use a congressional office to conceal evidence of criminal wrongdoing or to shield them from prosecution.

"This particular search could have been conducted in a manner that fully protected the ability of the prosecutors to obtain the evidence needed to do their job while preserving constitutional principles.

"The House will continue discussions with the Department of Justice to develop procedures so that any future searches of Members' offices will protect the ability of the FBI to do its job and maintain the constitutional balance between the Legislative and Executive branches of government."

Seems to me the search was conducted with WAY more checks and balances then you will find in an ordinary search warrant service. So how many more hoops does she want Law Enforcement to jump through before they can conduct a lawful search?

Either way you look at this thing these Congress critters are elected by the people and are subject to all the same laws that we are, they are not above the law. Hell, these offices that Jefferson would claim as a sanctuary are built and maintained by the people.

I have to wonder if some paper shredders will be working overtime tonight over this ruling….just a thought.

Other's Blogging:

Jefferson’s whole argument was that the search warrant was not valid since the search may inadverently capture lawful “privledged” congressional documents. Jefferson brought up the Speech and Debate clause which states that elected officials cannot be questioned by the President, Prosecutor, or Plaintiff in a lawsuit about their legislative work.

To that argument the Judge said “Phooey:

Curt

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