MB Civic

By Charles Lane | Thursday, May 25, 2006; A10 | The Washington Post

The FBI raid on Rep. William Jefferson’s congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say.

The issue could turn on whether a court finds that the items seized from Jefferson’s office were related to such protected legislative activities as writing, researching and voting on bills. Other things could be fair game for the prosecution, analysts said.

“An official legislative act is immune, but interference with anything beyond that” is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University’s Fletcher School of Law and Diplomacy.

The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.

Both the search warrant for Jefferson’s office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers — and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.

But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.

“It’s really a matter of etiquette,” said Akhil Reed Amar, a professor of constitutional law at Yale University. “I don’t see any constitutional principle here.”

The Speech and Debate Clause, contained in Article I, Section 6 of the Constitution, says that members of the House and Senate “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.”

It was meant to safeguard the independence of Congress against executive branch intimidation, of the kind the Founders had witnessed under King George III’s colonial governors, and harassment from private lawsuits.

Over the years, however, some lawmakers invoked the clause to shield corrupt activities. Given the clause’s exception for serious crimes, the Supreme Court has had to define the scope of its protections.

In a series of cases during the 1960s and ’70s, the court drew a protective line around papers, speeches and activities that are “essential” to legislative acts or the motives behind them, such as floor statements or committee reports. But it declined to protect anything not closely connected to legislative work, such as remarks to the press or constituent newsletters.

In 1972, for example, the court ruled that the Speech and Debate Clause could not shield Sen. Daniel B. Brewster (D-Md.) from prosecution for accepting a bribe in exchange for his promise to vote a certain way on postage rate legislation. (Brewster pleaded no contest to the charge.)

That same year, the court ruled that a Senate aide, though covered by the Speech and Debate Clause, had to respond to a grand jury subpoena to answer questions about whether Sen. Mike Gravel (D-Alaska) had violated federal law by arranging for a private book publisher to print the Pentagon Papers. (The Justice Department later dropped the case.)

In 1979, the court ruled that Sen. William Proxmire (D-Wis.) could be sued for defamation by a scientist whose work he had mocked in a news release and newsletter.

But it also ruled in a separate case that the government could not use a House member’s past votes or speeches as evidence of his motive for committing an alleged offense.

And a federal appeals court in Philadelphia ruled that the Justice Department was not entitled to look through the telephone records of a member of Congress.

An FBI agent’s affidavit released by the Justice Department in the Jefferson case noted that the search team adopted “special procedures in order to minimize the likelihood that any potentially politically sensitive, non-responsive items in the Office will be seized.”

The search warrant was approved by a high-ranking judicial officer, Thomas F. Hogan, the chief judge of the U.S. District Court in Washington.

But Stanley M. Brand, who was counsel to the House of Representatives from 1976 to 1983, said that “the problem is who watches them when they rummage to make sure they are not looking at legislative records.”

FBI agents barred the House general counsel and the sergeant at arms from the rooms it was searching.