For the first time in the history of our Country, Federal agents raided a Congressional Office on May 20, 2006. The office belonged to Rep. William Jefferson (D-LA), and was conducted with a legal search warrant obtained after witness interviews and wire taps gave authorities reason to believe Rep. Jefferson had, or was going to bribe a foreign official. Nine months earlier, a similar raid on Jefferson’s home produced $90,000 in cash in his freezer.

Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker’s documents.

“The U.S. Court of Appeals for the District of Columbia Circuit rejected that claim. The three-judge panel unanimously ruled that the search itself was constitutional but that FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.”

This ruling had to do with what is known as the Speech or Debate clause of the Constitution, Article I section 6 which states members of Congress “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”

For starters, this clause only prevents the arrest of Congressman while in attendance, or travelling to and from Congress. (Incidentally this clause is used by Congressman to avoid ever paying a speeding ticket). This clause however makes no mention of conducting a legal search of Congressional offices. It is also important to note the clause holds an exception for treason, felony and breach of peace, therefore a search of his office to garner evidence in a felony case should be exempt from this protection.

The leading Supreme Court case on the scope of the Speech or Debate Clause is United States v. Brewster, 408 U.S. 501 (1972), In Brewster, the Court stated, “[A] Member of Congress may be prosecuted under a criminal statute provided that the Government’s case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.”

The Court of Appeals decision is an unfortunate one, because it now allows Jefferson the opportunity to have any documents obtained from his office ruled inadmissable at his criminal trial.

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Appellate Court, Congress, Constitution, Politics, Supreme Court