U.S. Rep. William “Cold Cash” Jefferson may benefit from judges who look through the wrong end of their constitutional binoculars.
Two federal appeals court judges who ruled partly in Jefferson’s favor earlier this month seem to have inverted the original intention of the Constitution’s legislative “Speech and Debate” protection. They are making it a shield for secrecy instead of a protection for candor.
At issue is the FBI’s 2006 raid on Jefferson’s congressional office while investigating allegations that led to Jefferson’s indictment on bribery charges. Backed by many congressional leaders, Jefferson argued that the raid violated Article I, Section 6, of the Constitution: “For any Speech or Debate in either House, [members of Congress] shall not be questioned in any other place.”
Inherited from British parliamentary practice, the clause originally was meant to prohibit the executive from prosecuting legislators for open expressions of opposition. Over time, its meaning has been understood to extend to a general protection against prosecution of members for any actions legitimately related to the legislative process — including preparation of documents.
The raid, pursuant to a carefully drafted search warrant, was the first time in U.S. history that a sitting member’s congressional office had been searched by executive branch officials. Accordingly, the FBI andthe judge who issued the warrant went to great lengths to provide for separation of legislative documents from the specific, case-related papers sought in the warrant.
The federal district court that first considered Jefferson’s challenge to the raid ruled it was legal because it did protect Jefferson from executive interference into his actual legislative (as opposed to allegedly criminal) activities.
Two members of a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia agreed only in part. While reaffirming that the Speech or Debate Clause does not make congressional offices immune to duly executed search warrants, Judges Judith Rogers and Douglas Ginsburg ruled that Jefferson himself should have been allowed to be present during the search.
They said that in the course of determining which papers may or may not have been exempt from seizure, “the search of Congressman Jefferson’s office must have resulted in the disclosure of [at least some] legislative materials to [at least some] agents of the Executive.” Therefore, they said, Jefferson should have had a chance to review the documents first, to make claims about which ones merited protection.
In practical terms, Jefferson’s partial victory may not greatly help his trial defense. Rather than grant Jefferson’s request for a return of all the seized documents, the judges merely ordered the return of the documents that the district court determines are indeed “privileged legislative materials.” That still leaves prosecutors in possession of a bundle of papers seized from the office that may be useful to the case against the congressman.
On the other hand, it also potentially gives Jefferson grounds to appeal any guilty verdict meted out to him.
The third judge on the panel, Karen LeCraft Henderson, concurred in the order refusing to return the nonprivileged documents to Jefferson, but she strongly disagreed with the ruling that the search itself was flawed. She disputed the idea that the congressman himself should have been warned and present for the search.
She noted that the very nature of a search warrant — as opposed to a subpoena, which asks the subject himself to affirmatively turn over documents — is such that it gives legal grounds for a search for specific items without any action by the subject of the search itself.
She cited the 1913 case of Johnson v. United States: “[A] party is privileged from producing the evidence, but not from its production.”
Jefferson, and in effect Henderson’s judicial colleagues, averred that the Speech or Debate Clause provides protections so strong as to change the ordinary operations of a search warrant. But that’s where they looked through the wrong end of the binoculars, and mistook the very nature of the clause.
To quote Henderson’s opinion: “The core activity protected by the Clause — speech in either chamber of the Congress — is a public act. In essence, therefore, what the Clause promotes is the Member’s ability to be open in debate … rather than a secrecy right.” The Clause thus should not be understood to give the congressman the right to self-determine what documents remain out of sight of a search warrant duly issued by the judicial branch of government.
The split-the-difference decision almost assuredly means the issue ultimately will be, yes, debated again, before the U.S. Supreme Court.
Examiner Columnist Quin Hillyer is associate editor of The American Spectator.
