Rep. Jefferson's Papers

Friday, August 10, 2007

WHEN A TROOP of FBI agents raided the congressional office of Rep. William J. Jefferson (D-La.) last year, lawmakers of all stripes decried what they saw as an abominable violation of separation of powers. They insisted that any material seized by the government be returned immediately.

Last week, in language infinitely more tempered, a federal appeals court in Washington agreed -- but only, fortunately, to a point.

Before the raid, the executive branch had never searched the offices of a sitting lawmaker. Mr. Jefferson was under investigation for allegedly using his office to enrich himself and his family. In June he pleaded not guilty to a 16-count indictment. That case, which did not rely on documents seized in Congress -- but did cite the $90,000 in cash found in Mr. Jefferson's freezer -- continues.

After subpoenaing Mr. Jefferson but failing to strike an accommodation, the Justice Department obtained a warrant for that first-ever search. The warrant authorized the Justice Department to collect only non-legislative material relevant to the criminal investigation. For 18 hours, agents copied computer hard drives with the intention of later searching them using key words pertinent to the criminal probe. Hard copies of documents were perused by a "filter team" of lawyers who were not part of the prosecution team; only documents deemed by the team to be relevant to the investigation were taken away.

This approach wasn't careful enough for the U.S. Court of Appeals for the D.C. Circuit. The court ruled that because it was likely that government investigators laid eyes on privileged legislative documents, the raid violated the Constitution's "speech or debate" clause, which is largely intended to shield lawmakers from intimidation by the executive branch. Yet the court wisely parted ways with Mr. Jefferson's suggested remedy for the constitutional breach -- that the Justice Department be forced to return the seized material, not just material related to legislative pursuits.

Instead, the court has endorsed a process for reviewing the seized evidence that protects both Mr. Jefferson's interests and those of the Justice Department. Mr. Jefferson is being allowed to review all the material taken from his office to identify those documents that are privileged. The trial judge will decide whether to grant Mr. Jefferson's request to keep these documents from prosecutors.

This decision has been hailed as a win for Mr. Jefferson and fellow lawmakers -- and it is. But just as the court recognized the importance of keeping the executive from treading on legislative terrain, so, too, did it reinforce another essential principle: that legitimate law enforcement should not be derailed just because the target happens to occupy a congressional suite.

© 2007 The Washington Post Company