By Susan Schmidt
Washington Post Staff Writer
Wednesday, November 21, 2007
A little-noticed aspect of an appellate court decision could sharply limit investigations of members of Congress and hamper ongoing corruption probes, the Justice Department said this week in a motion seeking an emergency stay of the ruling.
The decision by the U.S. Court of Appeals for the District of Columbia Circuit was handed down in August in the case of Rep. William J. Jefferson (D-La.), but its effects complicate other investigations, including those stemming from the Jack Abramoff lobbying scandal.
Justice Department lawyers said in their motion that the appellate ruling represents an "unprecedented expansion" of the "speech or debate" clause of the Constitution, which was intended to protect legislators from intimidation under civil or criminal law. They said the decision calls into question the legality of investigative tools such as wiretapping, searches of home offices and voluntary interviews of congressional staffers.
All those methods have been employed by the department in ongoing investigations of current and former members of Congress, many of them over dealings with Abramoff. Among those under Justice Department investigation in connection with that matter are Reps. John T. Doolittle (R-Calif.) and Tom Feeney (R-Fla.), as well as former House majority leader Tom DeLay (R-Tex.) and former senator Conrad Burns (R-Mont.).
The ruling bars investigators from even "cursory exposure to legislative materials without a Member's consent," Justice Department attorneys said in their brief.
If the decision stands, members of Congress might be able to insist on having attorneys present when their staffers are interviewed by the FBI about legislative matters. Investigators may be stymied when they try to gather information about a luxury trip that a member of Congress asserts had an official purpose, or when they want to know if a former staffer violated rules on lobbying his old boss.
Several federal law enforcement officials who spoke on the condition of anonymity said that the ruling is affecting all their investigations to one degree or another.
"It just complicates enormously the investigation of federal elected officials," said Peter Zeidenberg, who prosecuted an Abramoff-related case against David H. Safavian, a former senior General Services Administration official.
Zeidenberg, now in private practice, predicted that "it's going to take the government a long time to figure out what it can and can't do," adding: "The government is going to have to reassess how it investigates members of Congress. This is just going to make life extremely difficult."
The appellate court case in question was Jefferson's challenge to the legality of the FBI's search of his Capitol Hill offices in 2005. A three-judge panel ruled that papers seized by the FBI "exposed legislative material to the Executive and accordingly violated" the speech-or-debate clause. It said the FBI is barred from "a location where legislative materials [are] inevitably to be found," unless the member consents.
This month the full appellate court declined, by a 5 to 4 vote, the Justice Department's request for a review of the panel's ruling. Yesterday, the Justice Department said it is considering an appeal to the Supreme Court.
The speech-or-debate clause states that "for any speech or debate in either House, [members of Congress] shall not be questioned in any other place." In practice, it has limited the use of bribery statutes in the prosecution of lawmakers because legislative acts cannot be used as evidence. Prosecutors have instead pursued cases by uncovering corrupt agreements between lawmakers and those seeking their favors.
Justice Department officials contend that the appellate court ruling expands the interpretation of the clause to mean prosecutors cannot even obtain information that might possibly include legislative deliberations. That could call into question evidence that has already been collected in the various offshoots of the Abramoff investigation and in other big public-corruption cases.
In the investigation of suspected congressional corruption, there were already "huge zones" of potential evidence rendered off-limits by the speech-or-debate clause, said Steve Bunnell, a lawyer who until recently handled such probes in the U.S. attorney's office in the District. "That zone is now bigger than what was previously understood."
Some defense lawyers said the appellate ruling rightfully forces law enforcement to be more careful about deriving leads and information from material protected by the clause.
"It may make their job harder, but the founders thought it was important enough to include in the Constitution to ensure co-equal branches of government," said David Barger, Doolittle's attorney.
Doolittle has already said that he plans to fight a Justice Department subpoena for 11 years' worth of records.
The FBI's search of Jefferson's office in 2005 produced a bipartisan outcry on Capitol Hill from members who said the Justice Department was upsetting the balance of power between the executive and legislative branches. As a result of the controversy, the FBI has not reviewed or used any of the papers it seized. For that reason, the appellate ruling does not have any effect on Jefferson's case. He was indicted this year on other evidence of racketeering and bribery.
The Justice Department had argued in the Jefferson matter that it was not seeking legislative documents and that it had set up procedures for them to be culled by a team of people who were not part of the investigation.