Federal agents conducting a criminal investigation of U.S. Rep. William Jefferson were entitled to raid his congressional office, a federal judge ruled Monday, and prosecutors can immediately begin reviewing seized material, including the computer hard drives seized from the congressman and his staff.
The May 20-21 search, the first ever of a congressional office, was carried out as part of a nearly 16-month political corruption probe that has targeted the eight-term New Orleans Democrat. It had been challenged by attorneys for Jefferson and by House leaders of both parties who argued that the search was unnecessary to advance the investigation and that it violated the separation of powers between the executive and legislative branches and the Speech or Debate Clause of the Constitution.
But Chief U.S. District Judge Thomas Hogan, in a 28-page ruling, rejected all the arguments, saying their theories, if carried to their logical conclusion, would allow members of Congress to hide evidence of criminal activities.
"Congressman Jefferson's interpretation of the speech or debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime," said Hogan, who had approved the search warrant for the May 20-21 search of Jefferson's office.
Jefferson's attorney, Robert Trout, vowed to appeal Hogan's ruling, but the fact that the judge, an appointee of President Reagan, said the material can be reviewed immediately by the Justice Department may indicate he won't be willing to stay his ruling during what could be a lengthy appeals process. Law enforcement officials have said they would expect a decision by a Virginia grand jury on whether to indict Jefferson fairly soon after the material taken from the office is made available.
Hogan rejected the contention by Jefferson's attorneys that the search wasn't necessary because the Department of Justice had not exhausted less intrusive approaches to obtaining the evidence and that the FBI agents had taken privileged material related to Jefferson's legislative duties.
"While the search here entailed an invasion somewhat greater than usual because it took place in a congressional office certain to contain privileged legislative material, the government has demonstrated a compelling need to conduct the search in relation to a criminal investigation involving very serious crimes and has been unable to obtain the evidence sought through any other reasonable means," Hogan ruled.
Separation of powers
As to whether the search violated the separation of powers, as argued by Jefferson's attorneys, Hogan said he actually found the opposite to be the case.
"Rather, the principle of the separation of powers is threatened by the position that the Legislative branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant," Hogan said.
Trout, Jefferson's attorney, vowed to appeal, and that appeal is expected to be filed today. Initially, it's likely that the appeal would be heard by a three-judge panel of U.S. District Court, and after that panel's ruling, the matter could come before the U.S. Supreme Court.
Trout said the raid "was unprecedented, unnecessary and unconstitutional."
"In this case, 15 FBI agents spent 18 hours looking at every piece of paper in the congressman's office, and they carted away his computer hard drive as well as the hard drives of every single member of his staff," Trout said. "A bipartisan group of House leaders joined us in court to argue that these procedures were in direct violation of the Speech or Debate Clause of the Constitution, which the Framers specifically designed to protect legislators from intimidation by the legislative and judicial branches. While a congressman is not above the law, the executive branch must also follow the law."
Hogan said it is true that members of Congress, under the Speech or Debate Clause of the Constitution, may not be questioned by a member of the executive branch, including federal prosecutors, for their legislative work. But that's not what happened, he said.
"No one argues that the warrant executed upon Congressman Jefferson's office was not properly administered," Hogan wrote. "Therefore, there was no impermissible intrusion on the Legislature. The fact that some privileged material was incidentally captured by the search does not constitute an unlawful intrusion."
The Justice Department has been investigating Jefferson since March 2005. The major allegation is that he accepted payments in return for using his congressional position to assist a small Kentucky telecommunications company, iGate Inc., in getting Internet and cable television contracts in Nigeria and Ghana. The CEO of iGate, Vernon Jackson, one of two people to plead guilty in the probe, has said that he paid a company controlled by Jefferson's family more than $400,000.
Lori Mody, an iGate investor who has been cooperating with federal investigators and has worn a wire during meetings and telephone discussions with Jefferson, was videotaped handing the congressman a briefcase with $100,000, reportedly to be used as a bribe for the vice president of Nigeria. All but $10,000 of the money was later found in the freezer of Jefferson's Washington home.
Jefferson has said he has an honorable explanation for the allegations against him. He has not been charged in the case and predicts he ultimately will be cleared of any wrongdoing.
House Democratic Leader Nancy Pelosi, D-Calif., who led the move to strip Jefferson of his seat on the powerful House Ways and Means Committee because of the allegations against him, said the ruling shows that "no one is above the law."
Still, Pelosi, who challenged the raid along with House Speaker Dennis Hastert, R-Ill., continued to question the way the raid was carried out without allowing a representative of the House counsel's office to observe.
"This particular search could have been conducted in a manner that fully protected the ability of the prosecutors to obtain the evidence needed to do their job while preserving constitutional principles," she said.
In his ruling, Hogan said there is no provision in federal rules for search warrants that allow someone to observe the search. Pelosi and a Department of Justice spokesman said discussions continue on procedures that both sides would agree to follow in any future raid of a congressional office.
"We are pleased with this decision, which allows us to move forward in this investigation using the documents that the court has concluded were lawfully obtained," said Justice Department spokesman Brian Roehrkasse. "At the same time, we will also continue our discussions with Congress about harmonizing policies and procedures for possible future searches."