U.S. Asks High Court to Nix 'Speech-or-Debate' Ruling

The Justice Department has asked the Supreme Court to overturn an appeals court decision limiting law enforcement searches of congressional offices, arguing that the sweep of the ruling last summer may kill ongoing public corruption investigations.

Acting Solicitor General Gregory G. Garre, in a petition filed this week, urged the high court to weigh in on how far the "speech or debate" clause of the Constitution goes in insulating members of Congress from legal action. In the meantime, he said, "investigations of corruption in the nation's capital and elsewhere will be seriously and perhaps fatally stymied."

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.), whose office was searched in 2006 by FBI agents investigating possible bribery. A three-judge panel ruled that under the Constitution, the FBI is barred from "a location where legislative materials [are] inevitably to be found," unless the member consents.

Justice Department lawyers called the ruling an "unprecedented expansion" of the speech-or-debate clause, which they said protects legislative acts but does not shield non-legislative materials that may show criminal activity. The appeals court found that FBI agents reviewed protected legislative records in the course of searching for criminal evidence.

The impact of the decision "affects virtually every public corruption investigation involving the legislative branch," Justice lawyers wrote in their Supreme Court petition, filed Wednesday.

The appellate ruling came amid a spate of public corruption investigations in Washington. In addition to the ongoing Jefferson investigation, there are other probes affected by the appeals court decision arising from the Jack Abramoff lobbying scandal, including investigations of 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 Justice Department petition said that the decision may bar searches of lawmakers' homes, cars, briefcases and home offices. As a result, it argues, many normal investigative tools have been suspended for fear that their use could taint an entire investigation.

"The government does not presently intend to use wiretaps against members in the District of Columbia -- the location where relevant communications are most likely to occur," the department said.

Some members of Congress are already asserting that the appeals court ruling means that law enforcement officers cannot interview Capitol Hill staffers without the consent of their bosses, the department said. Many current and former staffers have been interviewed, investigated and, in several instances, prosecuted as part of ongoing investigations of members of Congress.

The full court of appeals voted narrowly last month against reviewing the decision. Even if the Supreme Court were eventually to overturn the decision, Abramoff probes are already hampered by various statute of limitations deadlines, lawyers familiar with the investigation said.

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." Even before the ruling, prosecutors faced a difficult time proving a member sold his office, because legislative acts cannot be used as evidence. In the Abramoff investigation, they have pursued cases that rest on corrupt conspiracies between lawmakers and lobbyists without using legislative acts themselves as evidence.