|Jefferson documents remained sealed while he argues to permanently block them from prosecutors|
By Bruce Alpert
WASHINGTON — Rep. William Jefferson, D-New Orleans, must be given copies of materials taken in the unprecedented raid of his congressional office and given the chance to argue in private before a trial judge what documents are legislative in nature and should be kept from prosecutors, a federal appeals court ruled Friday.
In the meantime, the three-judge panel said that the Justice Department remains barred from reviewing the materials, which Attorney General Alberto Gonzales had hoped would begin earlier this week.
The judges indicated that they don’t want the process to take very long, giving Jefferson two days after receiving copies of the material to make any claims of legislative privilege.
It would be left to Chief U.S. District Court Judge Thomas Hogan, who had earlier rejected Jefferson’s plea that the documents be returned to him, to decide if Jefferson’s arguments should prevail.
Robert Trout, Jefferson’s lawyer, praised the ruling.
“We are pleased that in response to our motion for a stay, the Court of Appeals has prohibited the Department of Justice from reviewing the materials seized from the congressman’s office pending further order of the court,” he said. “We are continuing to study the order and the procedures that recognize the importance of the speech or debate clause.”
Justice Department spokesman Brian Roehrkasse said the agency is “pleased the court acted expeditiously. It is clear they understand the importance of moving this matter forward.”
Jefferson is the target of a federal probe that began in March 2005, centering on allegations that he received payments in return for his help promoting high-speed Internet and cable TV ventures by iGate Inc. of Kentucky in Nigeria and Ghana. Two of his associates, including the CEO of iGate, have pleaded guilty to bribery-related crimes. Jefferson has not been charged, and has denied wrongdoing. He has said he will seek re-election to a ninth term in Congress.
The case has been complicated by the historic May 20-21 search of Jefferson’s Capitol Hill office that has raised constitutional questions about the separation of powers and the speech and debate clause designed to protect members of Congress from executive branch interference in legislative matters.
“The court seems concerned about documents that are records of legislative acts, though it is unclear exactly how that is defined,” said Carl Tobias, a constitutional law professor at the University of Richmond. “The court is also properly maintaining the status quo by not allowing the government to see the documents.”
Harry Rosenberg, a New Orleans lawyer and former federal prosecutor, said that ruling gives Jefferson a chance to argue what documents should be excluded “without input” from the Justice Department and therefore Jefferson likely considers it favorable.
But Rosenberg said the ruling also should speed a final decision on the constitutionality of the raid, which was challenged not only by Jefferson but by the bipartisan leadership of the House of Representatives.
“The ruling appears to weave between Congressman Jefferson’s position and the government’s position, while according some deference to the arguments urged by the House of Representatives,” Rosenberg said. “It accelerated the process by issuing a substantive ruling, and not just deciding the motion to stay.”
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said that the District Court, either through a judicial officer or special master, should copy all physical documents seized from Jefferson’s office, using the copies of computer files made by the government under its search warrant, and provide the list of records to Jefferson. The judges, David Sentelle, Janice Rogers Brown and Thomas Griffin, said that they are placing Jefferson’s appeal of Hogan’s ruling upholding the search, on hold while Hogan decides on any legislative privilege claims raised by Jefferson.
Hogan had rejected claims by Jefferson and the bipartisan leadership of the House of Representatives that the raid of a congressional member’s office violated the separation of powers and the speech or debate clause. The clause bars members of Congress from being questioned by the executive branch, including federal prosecutors, about their legislative work.
In his ruling, Hogan said that such a finding would rule out almost any search of a congressional office, allowing Capitol Hill offices to be turned into “a taxpayer subsidized sanctuary for crime.”
(Bruce Alpert can be reached at firstname.lastname@example.org or (202) 383-7861.)