Search by FBI ruled invalid

The Baltimore Sun

WASHINGTON -- Rep. William J. Jefferson, the Louisiana Democrat under indictment on corruption charges, won a partial victory in court yesterday as an appellate tribunal ruled that federal agents went too far when they searched his office last year.

The FBI agents violated the Constitution when they viewed legislative papers in Jefferson's Capitol Hill office, the U.S. Court of Appeals for the District of Columbia Circuit ruled, citing a principle that goes back hundreds of years, to the time of all-powerful English monarchs.

"Accordingly, we hold that the congressman is entitled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate clause seized from Rayburn House Office Building room 2113 on May 20-21, 2006," the court ruled, alluding to the constitutional language that protects lawmakers from being hounded for what they say in deliberations.

The FBI raid on Jefferson's office marked the first time that a federal lawmaker's office had been searched in a criminal investigation. The incident ignited a debate that cut across party lines, with several members of Congress complaining that the executive branch was intruding on their domain.

Yesterday's ruling seems unlikely to derail the prosecution of Jefferson, who was indicted on June 4 on 16 felony counts charging that he put his office up for sale in hopes of reaping hundreds of thousands of dollars in bribes from nearly a dozen companies involved in oil, communications, sugar and other businesses, often for projects to be carried out in Africa.

For one thing, the appeals court rejected the notion that all material seized in the raid on Jefferson's office must be returned. The three-judge panel held that the agents' copying of computer hard drives and other electronic media was "constitutionally permissible" because Jefferson will have a chance to show that such material is also legislative in nature and therefore should not be disclosed.

And the appeals court noted that its job was not to review any claims Jefferson might raise under the Fourth Amendment, which protects people from unreasonable searches and seizures. Those issues will be decided by the trial court in Virginia.

Jefferson's lawyer, Robert Trout, said he was pleased.

"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," he said in a statement. "Those principles will continue to be important as we raise additional legal challenges to the overreaching by the government in this case. 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."

Prosecutors have charged that Jefferson used his position as a member of the House Ways and Means subcommittee on trade to promote the interests of companies without disclosing his stake in the deals.

Besides the material seized from the congressman's office, the evidence includes $90,000 to $100,000 found in a freezer in Jefferson's Washington home. Prosecutors say the money, wrapped in aluminum foil and stashed in food containers, was supposed to be a bribe for a high Nigerian official.

The Justice Department did not react immediately to yesterday's development. Justice officials have noted, as the court acknowledged yesterday, that "filter teams" composed of agents not involved in the case have been reviewing the material from Jefferson's office to ensure that only items pertinent to the case are used.

Such filters are not enough, the court ruled, noting the possibility of a "chill" descending on exchanges between a member of Congress and his staff if purely legislative material is subject to scrutiny by the executive branch.

"This chill runs counter to the Clause's purpose of protecting against disruption of the legislative process," the court said.

The speech or debate clause protects members of Congress from being grilled "in any other place" for what they say in the House or Senate. The Founding Fathers wrote it into the Constitution, using language similar to that of the English Bill of Rights of 1689, which was adopted to prevent kings and queens from using the specter of the dungeon, or worse, to muzzle legislators.

Yesterday's opinion was written by Judge Judith W. Rogers. Chief Judge Douglas H. Ginsburg concurred. Judge Karen Lecraft Henderson wrote an opinion concurring in the outcome but rejecting some of her colleagues' reasoning.

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