Searching Congress: A Fabricated Constitutional Crisis

JURIST Special Guest Columnist Wendy J. Keefer, former senior counsel and chief of staff in the US Department of Justice Office of Legal Policy and now with Bancroft Associates in Washington DC, says that claims of a constitutional crisis arising out the recent FBI search of the Capitol Hill office of Rep. William J. Jefferson (D-LA) are exaggerated...



Following an FBI search of Congressman William J. Jefferson's Capitol Hill office in connection with an ongoing criminal bribery investigation, a firestorm has ignited in which members of Congress are now claiming violations of the Speech and Debate Clause and the separation of powers principles of the US Constitution. But is this really a constitutional crisis?

Members of Congress must not be permitted to pervert the Constitution into a right to conceal evidence of criminal activity in their congressional offices with impunity. The search at issue was conducted in compliance with the Constitution, including the constitutional provisions invoked by critics.

Where the charge being investigated is clearly a felony and the immunity provided in the Speech and Debate Clause is merely from arrest and questioning under certain circumstances, the claimed applicability of this provision is mysterious:
They 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.
U.S. Const. art. I, § 6. In the case of Congressman Jefferson, no arrest occurred. Even if it had, the arrest would have been for a felony and thus not subject to this provision. The only possible claim of applicability would relate to whether somehow the search of a congressional office constitutes questioning of the member on a speech or debate. Despite the facial absurdity of such an argument, those publicly condemning the search cloaked themselves in it. Not surprisingly, most of the voices were those of current or former congressmen. But, the investigation and resulting search warrant have no connection to any legislative process.

The search warrant was instead part of a routine criminal investigation. On May 18, a special agent with the FBI applied to a court for a search warrant of Jefferson's office. The warrant application was supported by an 83 page affidavit that detailed, among other things, taped conversations between a confidential informant and Congressman Jefferson. The special agent making the application has been employed in this capacity since 1996 — hardly a rogue politico seeking to usurp congressional powers. And the warrant application was, as it should be, pursuant to the appropriate constitutional provision, reviewed by a court to determine if probable cause existed for issuance of the warrant.

In fact, special precautions were taken precisely because a congressman and his office were at issue. Agents not before involved in the investigation conducted the search. A "filter team," including lawyers, reviewed the documents retrieved to identify any truly privileged — legislative — materials. Even under these circumstances, where the Speech and Debate Clause provides no protection from criminal investigation, Congress — namely, Congressman Jefferson — were provided additional, unnecessary safeguards.

Invoking the Speech and Debate Clause under these circumstances runs afoul of the intent of that clause. The protection afforded is for acts done as part of the legislative process — it protects legislators engaged in legislative acts, thereby preventing intimidation from the other two branches and permitting free and open discussion of policy issues. It does not, and is not intended, to shield legislators from searches, seizures, arrests and prosecutions of materials and for conduct that is indisputably criminal.

In any case, any evidence obtained during such a search that is properly subject to the protections of the Speech and Debate Clause will not be permitted to be introduced during any prosecution of Congressman Jefferson. Interpreting the protections afforded by this constitutional protection, courts have determined introduction of such evidence would amount to "questioning" the congressional member concerning a speech or debate in the member's House. To date, however, none of those crying foul have identified any document or item seized that is actually entitled to protection under the Speech and Debate Clause. Instead, in what amounts to a disturbing attempt to create a place for themselves above the very laws they enact, several members of Congress demanded the return of all items seized.

If charged with a crime, a jury will determine the guilt or innocence of Congressman Jefferson. No doubt, the evidence submitted to that jury should exclude any materials appropriately protected by the Speech and Debate Clause. But where probable cause existed for evidentiary searches, particularly where the type of evidence sought is so wholly unrelated to the Congressman's legislative acts, the Speech and Debate Clause does not stand in the way.

Similarly, the conduct of a routine investigation, even when the target is a member of Congress, does not violate separation of powers principles. Indeed, both the Executive and Judicial Branches served their intended role in this situation. It is only Congress that seems uncomfortable with the fact that they may be subject to the same Fourth Amendment search and seizure principles as the rest of us when acting outside their legislative roles. Simply having a legislative office does not make anything contained within it legislative and worthy of special privilege.

A constitutional crisis? Only if the Executive Branch is bullied into returning documents that were lawfully seized. Merely invoking the phrases "Speech and Debate" and "separation of powers" cannot be permitted to undermine a legitimate criminal investigation. The Executive Branch is constitutionally tasked with enforcing our laws. If that branch is prevented from performing this task because the target of enforcement is a legislator, that is when a legitimate constitutional crisis emerges: we would be allowing Congress unjustified immunity from fair and just enforcement of the law.

Congressman Jefferson could have prevented the search had he simply complied with a subpoena issued to him last year. Instead, he refused to comply, leaving investigators with only two choices: (1) seek court approval to search for the documents, including a search of his office, or (2) provide special treatment to members of Congress by providing a de facto depository for evidence of crime. The first was a proper execution of the law. The last would have been a real constitutional crisis.


Wendy J. Keefer is a lawyer with Bancroft Associates in Washington DC. She previously served as Chief of Staff to the Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice.
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