Wednesday, May 24, 2006

Is a Congressman's Office Shielded from a Search?

The FBI is investigating Rep. William Jefferson (D-La.) for bribery. In a search of his New Orleans house, the FBI found $90,000 in cash in his freezer.

Several months ago, the FBI requested that Jefferson provide documents from his office. Jefferson ignored the request.

Therefore, the FBI sought and obtained a warrant to search Jefferson's congressional office. To oversee the search, the FBI assigned a special agent to assure that the agents conducting the search did not take any documents related to the work of Congress. With the warrant in hand and the special agent on hand to oversee the search, the FBI searched Jefferson's House office.

Leaders of the House of Representatives, including Republicans, complained that the search violated the constitutional separation of powers. The Constitution does not expressly provide that congressional offices are above the law. The relevant parts appear to be the Fourth Amendment, which limits searches, and the Speech and Debate Clause in Article I, which protects Congressmen from arrest and prosecution.

Similar to the protection of Congress under the Speech and Debate Clause, the First Amendment protects the press. The courts have ruled that the First Amendment does not shield newspaper offices from reasonable searches pursuant to a warrant. It seems that similar reasoning should apply to congressional offices and the Speech and Debate Clause. Thus, the Speech and Debate Clause does not prohibit an otherwise reasonable search with a warrant of a congressional office.

The Speech and Debate Clause reads:

The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Courts have held that the Speech and Debate Clause applies only to core legislative functions. It therefore seems that the FBI should be able to seize documents not related directly to legislative acts. I understand that the Justice Department may use initial document reviewers separate from the prosecution team. This would prevent the prosecutors from learning anything from documents that they should not see.

I do not see a constitutional issue in the present case. To me, the Members of Congress seem overly sensitive and too eager to extend their limited privilege from arrest and prosecution. For some other views on the constitutional issues, see Orin Kerr, Volokh's Conspiracy, and Cato@Liberty.

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