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DOJ Warns of Crime ‘Sanctuary’

If the search of Rep. William Jefferson’s (D-La.) House office is deemed unconstitutional, such a ruling “could not help but convert a Member’s office into a sanctuary for crime.”

So the government argues in an April 2 brief that previews its legal strategy for gaining access to more than 20,000 paper records and computer files seized in the controversial and unprecedented May 2006 search of Jefferson’s House office building.

Oral arguments in the case, officially known as United States of America v. Rayburn House Office Building, Room 2113, will be held May 15 before the U.S. Court of Appeals for the District of Columbia.

For two years, the FBI has been probing whether Jefferson took improper payments from the telecommunications firm iGate and attempted to bribe public officials in Nigeria and Ghana. The founder of iGate, Vernon Jackson, and Brett Pfeffer, a former Jefferson staffer, pleaded guilty to bribing the Congressman.

But Jefferson has denied any wrongdoing and has not been charged with anything.

Nonetheless, the May 20-21, 2006, search of the Congressman’s House office — the first of its kind — sparked a constitutional crisis in which bipartisan House leaders decried the invasion of their turf. President Bush intervened and ordered the seized materials to be held by the solicitor general’s office at the Justice Department.

The legal struggle over the thousands of pages of documents appears to have slowed the criminal investigation into Jefferson.

A federal district court ruled in July 2006 that Jefferson could review the documents and separate the ones that he deemed “privileged” under the Speech or Debate Clause that protects legislative acts from legal scrutiny.

So far, the Congressman has asserted privilege over half of the seized paper records and 41 percent of the confiscated computer files. A judge is charged with determining whether the records are privileged.

The FBI thus far has been granted access only to those documents that Jefferson has deemed unprivileged.

In their own April 13 brief, Jefferson’s attorneys contend that the government’s position “raises a number of straw man arguments” to detract from the fact that the search was unconstitutional and that all documents should be returned to Jefferson.

“DOJ’s brief marks another step backwards in its steady retreat from the bravado that accompanied the execution of the first search warrant ever issued for the office of a Member of Congress,” the attorneys contended.

“Congressman Jefferson has never asserted that he is above the law,” the attorneys added. “Congressman Jefferson has never asserted that Congressional offices are immune from search; he has only argued that searches must be conducted in a manner that is consonant with the Speech or Debate Clause.”

Jefferson’s arguments have been backed by a diverse crowd, including former Speaker Newt Gingrich (R-Ga.), former House Minority Leader Robert Michel (R-Ill.) and Scott Palmer, former chief of staff for Rep. Dennis Hastert (R-Ill.), who recently filed friend of the court briefs supporting Jefferson’s argument.

Speaker Nancy Pelosi (D-Calif.), who defended Jefferson after the raid, did not write a similar brief in support.

In its brief, the government states that while the Speech or Debate Clause is an “important protection” to lawmakers, it “does not afford effective immunity” from a search of a Member’s Congressional office.

It contends that the “special search procedures” used in executing the search warrant were sufficient to protect the integrity of those materials protected by the Speech or Debate Clause.

The search, for instance, was conducted by FBI officials not involved in the ongoing criminal probe, and they seized only those documents deemed pertinent under the search warrant. Instead of reviewing computer files while in Jefferson’s office, the agents copied the hard drives for subsequent screening out of privileged material.

After the search, a “filter team” of Justice Department attorneys and an FBI agent, none of whom was involved in the criminal probe, was to sort through the material and use only those records deemed privileged.

That never happened because a court ruled that Jefferson should be able to review the records before they were turned over to the prosecution.

In essence, the government argues that Jefferson has asserted a “sweeping confidentiality privilege” that would bar all executive branch officials from coming into contact with legislative materials, no matter where they are located.

“Under the Congressman’s view, agents could conduct a valid search only after giving a Member the opportunity to review all evidence in the place to be searched,” the government maintains. “Such an extraordinarily broad privilege … would jeopardize many, if not all, public corruption investigations.”

The government further posits that the Speech or Debate Clause does not apply to search warrants. It says there is no other practical or legally plausible way to search a lawmaker’s office than by law enforcement officers as representatives of the executive branch.

But Jefferson’s attorneys contend that the search of his office was wholly unconstitutional — and that all documents, privileged and unprivileged, should be returned.

“DOJ’s examination of legislative records in the Congressman’s office during the search was not incidental or cursory,” the attorneys, led by Robert Trout, state.

“Instead, DOJ embarked on a search of the location where it knew legislative materials were certain to be found. … This examination of all the records in violation of the clause was integral, not merely incidental, to the seizures.”

The attorneys insist the “complete return of all the seized materials is the only remedy” that upholds separation of powers principles and would serve as an “appropriate deterrent” to future searches of lawmakers’ offices.

The Congressman’s lawyers state it must be the lawmaker who decides what material is privileged before a search takes place. But they argue that the government is falsely contending Jefferson is trying to stake out a new “confidentiality” privilege. They argue Jefferson has the right to protect legislative documents from any kind of disclosure whether by search warrant or other mechanism.

The crux of Jefferson’s argument centers on the fact that the government made no attempt to divide privileged from non-privileged materials before it entered his office, making the search illegal.

They maintain that the “special” search procedures employed by the government were insufficient to protect Jefferson’s rights. They say that retroactively allowing Jefferson to weed through the documents is not sufficient.

Finally, Jefferson’s defenders claim the government’s argument that there is an inherent conflict between protecting a lawmaker’s rights and properly pursuing an investigation is “unfounded.”

“There is simply no legitimate basis for the exaggerated claim that declaring the search here to be unconstitutional would transform the halls of Congress into a ‘sanctuary of crime,’” Jefferson’s attorneys stated.

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