|Court Partly Rebuffs F.B.I. on House Office Search|
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By PHILIP SHENON
Published: August 4, 2007 - NYTimes.com
WASHINGTON, Aug. 3 — An appeals court ruled on Friday that the F.B.I. violated the Constitution in the methods used to search evidence seized in the office of Representative William J. Jefferson, the Louisiana Democrat indicted on bribery charges involving $90,000 found in his home freezer.
Charles Dharapak/Associated Press
The United States Court of Appeals for the District of Columbia did not find that the raid in May 2006 on Mr. Jefferson’s Congressional office was itself unconstitutional.
The unanimous three-judge panel ruled that documents taken from Mr. Jefferson’s offices must be returned to him if they are determined to involve his Congressional duties. Under the Constitution, the court said, legislative documents should have been shielded from review by agents of the Federal Bureau of Investigation or any other executive branch representatives.
The 18-hour raid was the first time that the bureau had searched a Congressional office. It prompted a clash between Congress and the Bush administration over its constitutionality.
Attorney General Alberto R. Gonzales; the director of the bureau, Robert S. Mueller III; and career prosecutors threatened to quit if the White House directed them to relinquish the seized evidence.
A showdown was averted only when President Bush ordered the evidence sealed, to give Congress and the Justice Department a chance to work out a deal.
In its ruling, the appeals court found that the bureau violated constitutional separation of powers, specifically the “speech or debate” clause, by allowing its agents to look freely through Congressional files in search of incriminating evidence against the lawmaker.
“The search of Congressman Jefferson’s office must have resulted in the disclosure of legislative material” to the executive branch, the panel said. “This compelled disclosure clearly tends to disrupt the legislative process.”
The Justice Department said the ruling would have no effect on the prosecution of Mr. Jefferson, who is facing trial next year on charges of bribery, racketeering, conspiracy, money laundering and obstruction of justice. He has pleaded not guilty to the charges.
A spokesman for the department, Brian Roehrkasse, said it was pleased that the opinion did “not find that the search of a Congressional office is unconstitutional.”
It was a mixed ruling for Mr. Jefferson, a Harvard-educated lawyer from New Orleans who is in his ninth term in the House.
Although the ruling requires the bureau to return legislative documents, it is allowed to retain everything else seized from Mr. Jefferson’s House office, including copies of computer hard drives that agents have not yet scrutinized.
The court said the hard drives did not have to be returned because Mr. Jefferson and his lawyers still had the opportunity to go to court to demand the chance to review what is on them before the contents were disclosed to investigators.
The ruling has no effect on evidence seized in a separate raid on Mr. Jefferson’s home in Washington, including the $90,000 found neatly wrapped in aluminum foil inside frozen food containers in his kitchen freezer. The F.B.I. has said Mr. Jefferson intended to use the money to bribe a senior official of Nigeria, where Mr. Jefferson sought to conduct business.
Mr. Jefferson’s lead defense lawyer, Robert Trout, said in a statement he was pleased with the ruling.
“As we argued,” Mr. Trout said, “the court ruled that the congressman had an absolute right to review his records first and shield legislative material from review by the executive branch. Today’s opinion underscores the fact that the Department of Justice is required to follow the law and that it is bound to abide by the Constitution.”
The raid on Mr. Jefferson’s office was denounced by lawmakers from both parties who saw it as an unconstitutional intrusion on Congressional independence. Two former House speakers, Thomas S. Foley, a Democrat, and Newt Gingrich, a Republican, filed legal documents supporting Mr. Jefferson’s legal challenge.
Speaker Nancy Pelosi welcomed the decision, saying she wanted to work with the Justice Department to set up a policy to handle searches of Congressional files.
“The court’s decision restates the central role in the separation of powers and the separation of checks and balances in our system,” Ms. Pelosi said. “The White House wouldn’t like it if we sent the Capitol Police over there to search Karl Rove’s desk.”
The Justice Department had anticipated the court challenges before the raid and had established a so-called filter team, a group of F.B.I. agents and department officials who had no involvement in the case, to review the evidence gathered in Mr. Jefferson’s office to determine what was clearly legislative and should not be used in the investigation.
The ruling by the three appeals judges, Douglas H. Ginsburg, Karen LeCraft Henderson and Judith W. Rogers, found that the creation of the filter team and other special procedures in the search were “insufficient to protect the privilege” that the Constitution granted to Congress to operate without interference from the executive branch.
Judge Henderson, a conservative Republican, issued a separate opinion largely supporting the justification for the search.
“Representative Jefferson,” she wrote, “remains subject to the same criminal process that applies to his constituents.”