Rep. Jefferson Wins Ruling Against FBI

By Allan Lengel
Washington Post Staff Writer
Saturday, August 4, 2007

A federal appeals court ruled yesterday that FBI agents violated the Constitution during their search of Rep. William J. Jefferson's Capitol Hill office last year, and ordered the agency to return all privileged materials.

In a 3 to 0 ruling, the U.S. Court of Appeals for the District of Columbia Circuit did not block future FBI searches of congressional offices. But it ruled that FBI agents went too far during the May 2006 search when they viewed paper documents before giving the Louisiana Democrat an opportunity to say whether the material was connected to legislative activity and thus protected under the Constitution's "speech or debate" clause.

At the same time, the court stopped short of ordering the return of all documents seized in the raid. "Although the search of Congressman's Jefferson's paper files violated the Speech or Debate Clause, his argument does not support granting the relief that he seeks, namely the return of all seized documents . . . whether privileged or not," the court wrote.

The ruling was hailed by Robert P. Trout, Jefferson's attorney. "As we urged, the court ruled that the Congressman had an absolute right to review his records first and shield privileged legislative material from review by the executive branch," Trout said in a statement. "Today's opinion underscores the fact the Department of Justice is required to follow the law, and it is bound to abide by the Constitution."

The impact of the ruling on Jefferson's criminal case was not immediately clear. The government previously contended that it did not use any privileged documents in preparing a 16-count indictment that charged Jefferson, 60, with offering and receiving hundreds of thousands of dollars in bribes to promote business ventures in the United States and several West African nations.

The Justice Department, in a written statement, said it was pleased that the court ruled that searches of congressional offices are not unconstitutional but disappointed that lawmakers must "be provided advance notice and the right to review materials" to be seized under a search warrant. It noted that the ruling would not harm "the indictment and prosecution of Congressman Jefferson" because of precautions taken during the raid.

Specifically, FBI agents tried to sort out relevant paper documents and made copies of electronic ones. The agency then intended to have two Justice Department lawyers and an FBI agent not involved in the case review the material to determine what was privileged and should be returned to Jefferson.

But a bipartisan uproar on Capitol Hill over the constitutionality of the raid -- the first by the FBI on a congressional office -- prompted President Bush to seal the seized materials so all parties could reach an accord.

Jefferson challenged the raid, saying it was unconstitutional, and requested that all the materials be returned. His attorney contended that he should have been able to review the materials, even during the raid, before FBI agents screened them.

In July 2006, U.S. District Judge Thomas F. Hogan ruled against Jefferson and released the documents. But the appeals court quickly sealed the material and ordered the government to make copies of everything so that Jefferson could challenge those he thought were privileged.

Jefferson challenged about half of the materials, and the remaining were handed over to the government for its case. The appeals court then directed Hogan to review the documents that Jefferson challenged, but he has yet to rule.

In its statement, the Justice Department said it will "review the decision and evaluate further action." Trout said the court ruling left open the possibility of challenging the use of non-privileged materials during the trial, which is set for January in Alexandria.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a liberal watchdog group that filed an amicus brief backing the government's argument on the raid, agreed. In a statement, she said that "this ruling is unlikely to affect the prosecution of Rep. Jefferson. . . . Nevertheless, this ruling may have a profound impact on the government's ability to thoroughly investigate other cases of congressional corruption."

Jonathan Turley, a George Washington University law professor who testified before Congress on the raid, applauded the ruling and said the government's action "has just served to delay the case and give Congressman Jefferson a legitimate complaint about his treatment."

"This is a very positive ruling not only for Mr. Jefferson but for Congress as a whole," he said.

House Speaker Nancy Pelosi (D-Calif.) said in a news conference that the ruling "restates the central role of the separation of powers, and separation of checks and balances in our system. Having said that, I look forward to working with the Justice Department on an appropriate protocol for access to members' offices when that is necessary."

"No member," Pelosi said, "should think that he or she is above the law or that his or her office is off limits if they're the subject of a criminal investigation."

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