Jefferson raid violated Constitution, court finds

Rep. William Jefferson’s (D-La.) legal team hailed a federal appeals court’s Friday decision that the FBI raid on his office last year violated the Constitution even though the court ordered only some of the documents seized to be returned to him.

“Today’s opinion underscores the fact that the Department of Justice is required to follow the law, and that it is bound to abide by the Constitution,” said Robert Trout, Jefferson’s lawyer. “Those principles will continue to be important as we raise additional legal challenges to the overreaching by the government in this case.

{mosads}“We are confident that as this case moves forward, and when all of the facts are known, we will prevail again and clear Congressman Jefferson’s name,” he added.  

The appeals court for the D.C. Circuit found that the raid on Jefferson’s congressional office violated the Speech and Debate clause of the Constitution, which protects the separation of powers between the executive and legislative branches of government.

“A review of Jefferson’s paper files when the search was executed exposed legislative material to the executive and accordingly violated the clause,” the judges wrote in the ruling. 

The court, however, ruled that the FBI’s imaging and keyword search of Jefferson’s computer hard drives and electronic media during the raid did not constitute a constitutional violation of the separation of powers clause because the Department of Justice placed a voluntary freeze on its review of the seized materials and FBI investigators have not had access to the information collected.  

Because of the different methods the FBI used to collect the two sets of documents, the ruling orders only the return of the privileged documents to Jefferson. The ruling did not determine what would happen with the electronic documents.

The decision could have far-reaching implications for the Justice Department’s corruption cases against members of Congress, and could prevent future raids of congressional offices. Last year’s unprecedented search of Jefferson’s office caused an uproar among lawmakers on Capitol Hill as then-Speaker Dennis Hastert (R-Ill.) and then-Minority Leader Nancy Pelosi (D-Calif.) closed ranks and joined forces to fight it in the courts, a rare moment of bipartisanship in an otherwise bitterly divided House.

Reacting to the ruling, Department of Justice (DOJ) spokesman Brian Roehrkasse maintained that the court did not find the search of the Congressional office itself in violation of the Constitution but instead focused on the FBI’s seizing of paper documents without providing advance notice and allowing Jefferson to review materials before the execution of the search warrant. He expressed disappointment that the court ruling is an indication that advance notice is required when executing a search warrant on a member of Congress.

Roehrkasse also maintained that the decision would not impact the government’s indictment and prosecutions of the case against Jefferson.

“The Department of Justice will continue to prepare for trial, scheduled for January 2008, and we are pleased that the D.C. Circuit opinion allows the prosecutors to retain non-Speech or Debate clause documents,” he said. “The Department will review the decision and evaluate further action.”

Despite  DoJ’s assertion that it would not affect its case, the ruling could have a significant impact on it because the Louisiana lawmaker has argued that it was private business ventures and that he never used his office for “official acts” on behalf of the telecommunications companies.

Jefferson is accused of accepting $100,000 in bribes for promoting telecommunication business in Africa. An informant wearing a wire offered Jefferson the sum, $90,000 of which was later recovered in a freezer in the congressman's D.C. home. The probe already has led to guilty pleas from a Kentucky businessman and a former Jefferson aide.

The distinction between official acts and private business activity is important because, in a key bribery case, the U.S. Supreme Court ruled in 1999 that the government must prove that an official act is linked to a public official’s acceptance of a “thing of value.”

That case involved Sun Diamond Growers’ illegal gifts to then-Agriculture Secretary Mike Espy. The Supreme Court unanimously ruled in Espy’s favor because the government was unable to show that Espy provided an “official act” in exchange for the expensive gifts he received.

The federal government needs to convince a jury that such things as letters written on congressional stationery and foreign travel arranged by Jefferson’s House staff amount to “official acts.”

The Hill has reported that Espy donated $1,000 to Jefferson’s legal defense fund one day after the Louisiana Democrat was indicted.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington and a litigant in the case, called the ruling “devastating.”

Sloan said that because there was no Supreme Court authority on which to base a decision, the court relied instead on a civil D.C. Circuit case. She argued, however, that the decision is unlikely to affect the case against Jefferson because the government indicted him without relying on material obtained during the office raid.

“Nevertheless, this ruling may have a profound impact on the government’s ability to thoroughly investigate other cases of congressional corruption,” she said.

For instance, Sloan said the ruling gives Sen. Ted Stevens (R-Alaska), who is under FBI investigation for his ties to an oil-services company and whether it paid for the renovation of his Alaska home, an incentive to store documents concerning the renovations in his office, “secure in the knowledge that it will be beyond the reach of federal investigators.”

Jefferson’s trial is scheduled to begin in January 2008.