The Supreme Court announced yesterday [Monday] that it will not review a lower court's decision that an FBI raid on Rep. William J. Jefferson's congressional office violated the Constitution, a ruling that federal prosecutors had said could make lawmakers' offices a "sanctuary for crime."
Without comment, the court decided not to get involved in the legal fight between the Justice Department and Congress over the 2006 search of the Louisiana Democrat's Washington office. Jefferson subsequently was indicted on charges that he solicited more than $500,000 in bribes. He pleaded not guilty, and his case has not yet gone to trial.
Jefferson was indicted without the use of the documents seized, but the Justice Department said the ruling would endanger other probes. "Investigations of corruption in the nation's capital and elsewhere will be seriously and perhaps fatally stymied," the government argued in court briefs.
Peter Zeidenberg, a former public integrity prosecutor now in private practice, said the lower court's ruling not only affects searches of congressional offices but also potentially limits the questioning of congressional staff members by law enforcement officials.
"I think it's going to cause a great deal of confusion about what can and can't be done. It's a very difficult path for prosecutors," he said. "People are not going to know where the lines are drawn."
This Supreme Court non-action has consequences beyond the corruption case of Rep. Jefferson. As I wrote back in December, Rep. John Doolittle (R-Calif.) and former Rep. Tom DeLay (R-Fort Bend County) may find legal protection from such a ruling. The WaPo confirms my fears:
Government prosecutors are concerned about how the appeals court's decision could affect other corruption probes, including investigations of several congressmen that arose from the Jack Abramoff lobbying scandal.
Several Congressmen: Rep. Doolittle, former Rep. DeLay and Rep. Tom Feeney (R-Fla.). Is three several?
I've only scanned the appeals court ruling (.pdf) upheld by the Supreme Court. Fortunately, it doesn't seem all is evidence is lost to the Justice Department:
A judicial panel of the D.C. appeals court decided that government investigators probably had seen privileged legislative documents and, as a result, the raid had violated the speech-or-debate clause. The court said Jefferson should be allowed to review the material taken from his office and identify which documents were privileged. A judge is to decide whether prosecutors can have access to those papers.
Potentially lengthy court proceedings to determine whether each individual item is a "privileged legislative document" may limit the amount of evidence prosecutors may attempt to gain access to. The good news is that if something is important to prosecutors, they will have an opportunity to acquire it legally. The bad news is that Justice Department lawyers used strong language to explain why it was so important for the appeals court decision to be reversed: Unless the lower court decision is reversed, the Justice Department said, "investigations of corruption in the nation's capital and elsewhere will be seriously and perhaps fatally stymied."
I support the "Speech and Debate" clause of the US Constitution, but I don't want it used to hide criminal acts. I'll repeat what I wrote in October, 2007:
Now I'm all in favor of protecting legislative materials from the executive branch. But there must be some balance struck in these corruption cases. Corruption should not be protected by the US Constitution, but the executive branch shouldn't be able to claim corruption to pierce the very real protections of the "Speech and Debate" clause. Smarter people than I need to find a way to strike that balance.
I don't believe the US Supreme Court made any progress in striking an appropriate balance by refusing to hear the Justice Department's appeal.
Given that Rep. Jefferson may now claim that certain items seized via a search warrant are privileged, the Anti-Corruption Republican is trying to get a second source on the record to confirm that Rep. Jefferson is trying to suppress the frozen pizza, corn dogs, and other items found in his freezer. [/sarcasm]
Why Democrats Can't be Taken Seriously
For some reason, I found this rhetoric completely inappropriate:
The present speaker, Nancy Pelosi, called last August’s ruling a reaffirmation of the separation of powers and the checks and balances the Founding Fathers had in mind.
Referring to President Bush’s former political adviser, Ms. Pelosi said, “The White House wouldn’t like it if we sent the Capitol Police over there to search Karl Rove’s desk.”
Look, the Justice Department got a federal judge to find probable cause that Rep. Jefferson had committed a crime when it got a warrant to search Rep. Jefferson's office. I understand that Democrats have an unhinged hatred for Karl Rove. But no competent body has even come close to suggesting that there is probable cause that Mr. Rove has committed a crime. It is extremely strange for Speaker Pelosi to ostensibly defend the Constitution by advocating a warrantless search.