Jefferson, House Find Raid Case a Hard Sell

Today, Roll Call had a report on the effort of Rep. William Jefferson and House leaders of both parties attempting to make a case for protection of documents seized by the FBI in a search of the Congressman's hill office.

A federal judge on Friday signaled that he was inclined to rule against Rep. William Jefferson (D-La.) and a bipartisan group of House leaders as they challenged the constitutionality of an FBI raid on the Louisiana Democrat’s office last month.

Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia, who approved the search warrant for the FBI raid, said he would file an opinion in the case soon. Several lawyers close to the matter predicted Hogan’s decision could come as early as this week.

One of the more interesting arguments posited by Robert Trout, attorney for Rep. Jefferson is that

the constitutional privilege afforded lawmakers by [the Speech and Debate] clause is inviolate, and that any search of a Congressional office would be unconstitutional in that it would allow executive branch officials access to legislative materials, even if those materials ultimately were never used in a criminal prosecution.

“Viewing [the documents] alone is a violation of the Constitution?” Hogan asked Trout.

“Yes ... that is unconstitutional,” Trout responded.

Trout added that it was up to any individual lawmaker, not the executive or judicial branches, to invoke the privilege afforded them under Speech or Debate.

“The Congressman has to be the one ... who makes the decision to invoke privilege,” Trout said. The Justice Department has proposed that it will review all materials seized from Jefferson’s office to determine if they are privileged, with a judge making the final decision on any document in question.

So let me see if I have this straight. Despite the fact that the Speech and Debate clause does not exempt lawmakers from searches and seizures in cases of treason, felony or breach of the peace, Trout is arguing that the clause allows the Congressman, and only the Congressman, to determine whether material is privileged or not.

Not to be too blunt, but hogwash. The Speech and Debate clause does not exempt a lawmaker from searches for material involved in a felony investigation. The clause protects documents, notes and memoranda dealing with legislative matters, not felonious matters.

There seems to me to be a logical out in this matter for Judge Hogan. First, rule the search constitutional as it was done with a properly executed and supported search warrant. Second, rule that the House Counsel's office and Trout may make a privilege log, similar to those used in every case in America, and note those documents that are privileged under the Speech and Debate Clause. Any document that is questionable is presented to the Court, just like any other case.

Judge Hogan reportedly questioned Trout in a number of ways about where the line of privilege should be drawn.

At one point, Hogan asked Trout whether a search of a lawmaker’s office would be unconstitutional if law enforcement officers thought he or she was hiding five kilos of cocaine in a drawer with privileged materials in it. Trout responded that “You don’t have to look at a document or any document to figure out if it’s cocaine.”

Hogan then asked about “ledgers showing evidence of drug trafficking.” Trout suggested those documents would be privileged, and thus a lawmaker could not be compelled to turn them over.

That seems to be a rather tenuous line at best. Records detailing criminal activity are not privileged merely because they are written down in a Congressman's office. A crime is a crime.

It is true that Congressmen have extra rights afforded to them that are not available to the average citizen. Fine, but rights are not a one-sided coin. The reverse is more responsibilities that come with those rights. One of those responsibilities is to not violate the law, and a lawmaker should be held to a much higher standard than the average citizen. As the saying goes, "Ceasar's wife must be beyond reproach."