Jefferson, prosecutors square off on search powers

After nearly a year of sweeping statements about constitutional separation-of-powers protections, the question of whether Rep. William Jefferson (D-La.) can prevent prosecutors from viewing thousands of pages of documents obtained in an FBI raid of his office may come down to a simple question of logistics.

Attorneys for the government and Jefferson argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit yesterday that the Constitution’s “speech and debate” clause protects members of Congress from government intrusion. They differed, however, on just how broadly those protections extend.

{mosads}If the panel determines that the raid was unconstitutional, prosecutors will not have access to an estimated 19,000 pages of documents in question. Jefferson has not been charged, so prosecutors may be waiting to see whether that evidence will
bolster the case.

During yesterday’s oral arguments, attorneys on both sides agreed that it would be logistically difficult, if not impossible, for the FBI to separate that protected material from other documents uncovered during a search of a congressional office.

But that is where their agreement ended. Jefferson’s attorneys held that this logistical nightmare should prevent surprise searches of congressional offices. When the government wants access to a lawmaker’s office records, they argued, there should be more protections for legislative material. The House counsel, for instance, should step in to determine which documents fall under the “speech and debate” privilege, which covers all legislative material, and what can be given to the
Department of Justice (DoJ).

Justice Department attorneys countered that members of Congress should not be immune from office searches as long as the Justice Department takes certain precautions. In Jefferson’s case, they argue, agents who were not involved in Jefferson’s separate criminal investigation conducted the raid. The DoJ also had planned on using a “filter team” consisting of Justice Department attorneys and an FBI agent, none of whom are involved in a separate criminal probe into Jefferson, to sort through the material and use only those documents that are not legislative in the case against him.

The filter team never had a chance to act because President Bush stepped in and ordered all the seized material to be held by the solicitor general’s office at the Justice Department. Jefferson has since had a chance to sift through the documents to determine which items he believes are privileged. A judge also is reviewing these papers and electronic files to determine which, if any, should be given to prosecutors.

Jefferson’s attorney, Robert Trout, said yesterday that the FBI seized nearly 40,000 documents during its 18-hour search of Jefferson’s congressional office. Jefferson has claimed that roughly half of those papers are privileged because they relate to his work as a lawmaker, and therefore should not be released to prosecutors.

Trout said FBI investigators cannot be given the latitude to decide whether a given piece of paper or electronic document relates only to Jefferson’s work as a legislator and therefore should not be used in the case. Agents, Trout argued, could inadvertently include a politically sensitive legislative issue in a public court document — which could inadvertently intrude on Congress’s constitutionally guaranteed independence.

“How do we know if an FBI agent — there were 15 FBI agents over 18 hours — didn’t say, ‘Hey Joe, get a load of this. This is really interesting’?” Trout said.

Before the FBI collects any documents in a search of a member’s office, Trout argued, the House counsel should have seen them to determine which the FBI can have and which they cannot.

One panel member, Judge Judith Rogers, cited concerns by some lawmakers that congressional offices would be overly disrupted if the FBI had the leeway prosecutors want. That is another reason that members have argued that the House
counsel should first decide which documents to hand over to the DoJ.

But Deputy Solicitor General Michael Dreeben argued that doing so would be a logistical nightmare, allowing targets of congressional investigations to determine what they will and will not hand over.

“That’s like essentially giving the member the keys to the evidence locker,” Dreeben said.

Dreeben also noted that the DoJ has reason to distrust Jefferson.  

“There is evidence that [Jefferson] was attempting to conceal documents in an earlier search,” he said.  

Trying to gain access to documents in a timely manner is another consideration.

“We’re talking about a massive volume of documents when we take into account electronic documents,” Dreeben said. He added that giving the House counsel the right to sort through all the documents could cause serious delays that could obstruct justice.

He also said there is “evidentiary value” in the exact location in which a document is found in an office, which would be lost if lawmakers were allowed to sort through them beforehand.

The FBI has been investigating whether Jefferson accepted improper payments from the telecommunications firm iGate. The founders of iGate, Vernon Jackson and Brett Pfeffer, who had worked for Jefferson’s congressional office, pleaded guilty to bribing the congressman. Jefferson allegedly accepted $100,000 from them, $90,000 of which the FBI found in a
freezer in Jefferson’s home.