August 3, 2007

Appellate Court Upholds Congressional Privilege In Reasonable Ruling

The DC federal appellate circuit has ruled a part of the FBI's raid on William Jefferson's Congressional offices unconstitutional. The three-judge panel ordered the FBI to return certain seized documents to Jefferson without accessing them. The Department of Justice warned that the ruling could put public corruption out of the reach of law enforcement, but a close look shows that the court made a specific and reasoned ruling that actually supports most of their position:

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 that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker's documents.

It's a tough question. The executive branch has little business rummaging through Congressional documentation, just as Congress has little business demanding access to Presidential advisors. The balance of power rests on each branch's ability to clean their own house, and in this case, the House appeared incapable of doing so.

Still, one cannot fathom the concept of allowing Capitol Hill to become a safe house for corruption. Not even the court appears to have endorsed the concept that Jefferson's office itself was off limits. The ruling specifies only a portion of the evidence removed from Jefferson's digs, only those documents that the court itself has ruled "privileged".

That's why these disputes go to the courts for review. This appears, at least on its face, to be a reasoned and reasonable distinction by the DC circuit court. The raid itself has been upheld, and only the infringement on Congressional privilege has been rejected. We'll see if the Department of Justice decides to press its luck with the Supreme Court.


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Comments (8)

Posted by the fly-man | August 3, 2007 10:28 AM

Quote: "Congress has little business demanding access to Presidential advisors." I hope that you will remember you said this when the Democrats take the White House and flip the GOP the bird when they get interested in what's behind the green curtain. I certainly will.

Posted by hunter | August 3, 2007 11:57 AM

the difference between properly executed search warrants for documents relating to a crime and fishing for priveleged information from lawyers will be lost on democrats. But i do hope whenthe dust settles that your take on this is correct, and that criminals in all branches of government and society will find they are under the same rule of law.

Posted by NavyspyII | August 3, 2007 11:58 AM

If this ruling holds, and it will likely go to the SC before it's all said and done, I have one rather pointed question.

WHO vets the legislator's papers, and determines if they're legislative or not?

By this ruling, only the affected body could do so, as this court objected even to a group disassociated from the investigation looking at the papers.

So, if only the affected party can tell you if the document is legislative, and therefore off limits, doesn't that allow him to declare anything incriminating off limits?

Kinda destroys the whole concept, don'tcha think?

Out of approx 500 members of Congress, 400+ need to be gone.

Posted by Jazz | August 3, 2007 12:50 PM

If any papers seized are strictly legislative in nature, then I would like to bring up two points. First, there is nothing stopping Justice from simply returning the papers on their own after their proper investigation shows that they have nothing to do with the investigation at hand.

Second, documents which are strictly related to legislation should not only be fair game for the Justice Department, but for the American people as well except in rare cases where "super double secret probation" legislation or matters of national security are concerned. (And in those cases, if we can't trust the Justice Department to handle sensitive documents properly and return them after determining their nature, we have bigger problems to worry about.)

What the legislative and executive branch are up to at any given time (again, unless it's a true matter of national security requiring secrecy at that level) is always the business of the people electing them to office an paying their salaries. Executive prevelidge, legislative privelidge, etc. humbug. Mold and rot grow in the dark. A little daylight is generally good for every system.

The guy had a freezer full of cash wrapped in tin foil. Yes, he gets his fair share of due process and his day in court, but that's more than enough for me to say that the investigating officials and the American people all have a right to know what he's up to on our dime. And then ship him off for a nice round of vollyball with Duke Cunningham.

Posted by Del Dolemonte | August 3, 2007 3:25 PM

The DNC spin on this has already begun-ABC Radio News this afternoon dishonestly reported that ALL of Ice-Box's documents that were seized had to be returned to mention made that the actual ruling was that only SOME of the docs had to be returned.

Posted by Barnestormer | August 3, 2007 3:59 PM

Just to amplify hunter's post, the search warrant; as in issued by the judicial branch .

Posted by Wookie22 | August 3, 2007 6:03 PM

If anyone is going to appeal here, it will probably be Jefferson and not the DOJ. While the Court held (in Jefferson's favor) that the search violated the Speech and Debate Clause, it rejected his proposed remedy (a return of all documents, privileged or otherwise).

So despite the violation, the incriminating documents will not be shielded so long as they are not privileged. I don't see the DOJ fighting this ruling, because they don't care about -- and did not intend to retain -- privileged documents; indeed, the search warrant specifically established a procedure for the return to Jefferson of any documents that DOJ and FBI officials deemed subject to the privilege. The Court simply held that this after-the-fact protection did not suffice given the established "absolute" nature of the Speech and Debate privilege.

So if anyone will appeal, I bet it will be Jefferson, and he'll urge the Supremes to apply a broader protection where a search violates the clause, much like an exclusionary remedy under the Fourth Amendment (which wasn't at issue here).

Posted by Rose | August 4, 2007 12:21 AM

Is it even POSSIBLE for such deep corruption to be healed and repaired?


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