|Ruling in Jefferson case could make history|
Posted by Washington bureau May 14, 2007 7:33PM
By Bruce Alpert
Washington bureau - NOLA.com
WASHINGTON -- A three-judge panel will be breaking new legal ground today as it prepares to decide the constitutionality of the May 20-21 FBI search of Rep. William Jefferson's Capitol Hill office, the first such raid in U.S. history.
The judges -- two appointed by Republican Presidents Ronald Reagan and George H.W. Bush, and the third selected by Democrat Bill Clinton -- will hear oral arguments in the closely watched case.
Led by Douglas Ginsburg, the chief judge of the U.S. Court of Appeals for the District of Columbia, the panel will decide whether the raid violated the constitutionally established separation of powers between the executive, legislative and judicial branches of government. Jefferson and a group of former Democratic and Republican House leaders say it was a clear violation, while the Justice Department contends that the search is consistent with the tradition in America that no one is above the law.
The court's ruling could have a major impact on an ongoing corruption probe that has targeted Jefferson, a nine-term New Orleans Democrat, since March 2005. The government hasn't filed charges against Jefferson, who has denied wrongdoing.
"This the first time we've had a search of a member's office," said Keith Werhan, a constitutional law professor at Tulane University. "There is no precedent."
It's possible, he said, that the judges will draw an inference that because no other members have had their offices searched since the first Congress 218 years ago, it has become "historic practice" to keep the offices off limit to federal investigators.
Conversely, the judges could take the view that, assuming the search warrant was obtained appropriately; based on probable cause a crime had been committed, that the raid should be considered routine, even with its historic status.
The case took on still more drama Monday as the U.S. Justice Department announced the resignation of the No.2 official at the department who green-lighted the controversial raid of Jefferson's office. Deputy Attorney General Paul McNulty, who has overseen the Jefferson case since it was launched more than two years ago, is expected to leave late this summer.
McNulty's departure is seen as closely related to his role in the ongoing storm on Capitol Hill surrounding the firings of eight U.S. attorneys last year. McNulty was a pivotal player in the decision to remove the prosecutors, which Democrats have portrayed as a political purge of the department as they continue the drum beat for the firing of Attorney General Alberto Gonzalez.
McNulty and Gonzalez both threatened to resign last year when, under political pressure from Congress, it appeared President Bush might return the seized documents to Jefferson. The president opted not to return the documents and the court fight has raged ever since.
According to Justice Department court filings, the government is investigating allegations that Jefferson took payments to promote the sale of telecommunications equipment and services offered by iGate Inc., a Louisville-based communications firm, to Nigeria and Ghana. The CEO of iGate, Vernon Jackson and Brett Pfeffer, a former congressional aide to Jefferson, are now serving federal prison sentences after pleading guilty to bribery-related charges.
The government, in legal documents released last spring, said it also is looking at other business transactions involving Jefferson. Noreen Wilson, president of Global Environmental Energy, which has attempted to market waste-to-energy incinerators and partnered with a firm that promoted a power plant in Nigeria, has testified at least five times before the Virginia grand jury overseeing the Jefferson probe, according to legal documents made available last week.
In briefs submitted to the three-judge panel, Jefferson's attorneys argue that the search was so heavy-handed that not even the counsel for the House of Representative was allowed to watch. Although they acknowledge some of the documents taken were not protected under the Constitution's Speech or Debate clause meant to protect a member's independence, the lawyers argue that the prosecutors so exceeded their authority that they shouldn't be allowed to build their case on any of the materials taken in the raid.
Randall Eliason, an American University law professor who ran the Justice Department's white collar crime division during the Clinton administration, said he doubts the court will stop the Justice Department from using any of the seized materials. The judges, he said, likely will give considerable deference to Washington, D.C., Chief District Court Judge Thomas Hogan, who granted the Justice Department the search warrant that authorized the raid of Jefferson's office.
"Judge Hogan is a judge who is careful and well-regarded, and I think that will count with the appellate court," Eliason said.
Carl Tobias, a constitutional law professor at the University of Richmond, said that while the case will be decided by two fairly conservative judges and a more moderate Clinton appointee, this is one case where judicial philosophy may not give many clues about the case's outcome.
A conservative jurist, he said, might well give more weight to the historical separation of powers and look unfavorably at a possible overreach by the executive branch. But that could run counter to another view -- that a person accused of a crime shouldn't be able to use legal technicalities and debatable constitutional arguments to squash evidence of possible wrongdoing.
The three judges hearing the case -- Ginsburg, whose nomination to the U.S. Supreme Court by Reagan was derailed after he admitted smoking marijuana as a Harvard University student and professor; Karen LeCraft Henderson, a conservative jurist appointed by President George H. W. Bush, and Judith Rogers, a moderate-to-liberal Clinton appointee -- are generally highly regarded for their legal scholarship and known for sometimes reaching unpredictable conclusions.
For example, Ginsburg, recently joined with Rogers in a decision that declared terminally ill patients eligible for experimental drugs not yet approved by the Food and Drug administration.
LeCraft Henderson last month wrote a dissent to a Court of Appeals ruling invalidating a Washington D.C. law banning handguns on the grounds that the Constitutional right to bear arms resides only with citizens of the states of America. Washington D.C., she wrote, is not a state.
Bruce Alpert can be reached at email@example.com or (202) 383-7861.