His attorneys said nearly 19,000 pages of documents and electronic files seized by prosecutors and the FBI are covered by the constitutional principle that the executive branch may not use its law enforcement powers to infringe on the independence of the legislative branch.The constitutional issue is not whether the executive branch can use its powers to investigate officials in the legislative branch, but rather it is the limits of the speech and debate clause, the protection from prosecution for official acts and speech by a lawmaker.
Attorney Robert P. Trout told the court that the search was unconstitutional because, while FBI agents looked for documents related to their criminal investigation, they also examined many other records related to Jefferson's work as a legislator.
"How do we know 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.
Trout said an attorney for the House should have been allowed to review the documents first to decide what should not be provided to the FBI.
The Justice Department countered that, if Jefferson had his way, targets of congressional bribery investigations could pick and choose what evidence to turn over to the FBI.
"In other words, the target of the search would be entitled to define the scope of the search," government attorneys said in court documents.
The raid was part of a 16-month international bribery investigation of Jefferson, who allegedly accepted $100,000 from a telecommunications businessman, $90,000 of which was later recovered in a freezer in the congressman's Louisiana home.
While I understand the fear that Congressmen may have, there is a check on searches of legislator's office--namely that search warrents have to be issued by a judge--a third party with no dog in the fight. In this case, a judge issued the search warrant.
Second, while the Speech and Debate clause is pretty broad, the last I checked bribery is not a covered action. Bribery is a crime and the FBI has an obligation to investigate and forward for prosecution its findings. Here, the FBI had probably cause to believe that relevant records were in the Capitol Hill office, otherwise a judge would not have issued a warrant.
Something tells me this will be on the Supreme Court's docket next year.