Set forth below is a short piece I wrote regarding the search of the congressional office of Congressman Jefferson, just before Chief Judge Hogan issued his ruling upholding the search.
In the next few days, Chief Judge Thomas Hogan of the United States District Court for the
Attorneys for Congressman Jefferson, backed by lawyers for the U.S. House of Representatives, have argued FBI’s search of Mr. Jefferson’s congressional office violated the Speech or Debate Clause of the Constitution. They assert that during the search the FBI reviewed and/or seized “legislative” documents, i.e., documents which by virtue of dealing with matters within the legislative sphere, such as legislation or congressional hearings, are privileged against compelled production from a member of Congress or a legislative agent.
The Department of Justice, on the other hand, contends that the search of premises belonging to or under the control of a member of Congress does not constitute “questioning” of that member within the meaning of the Speech or Debate Clause. Moreover, DOJ maintains that the search was not seeking legislative documents and that Congressman Jefferson’s Speech or Debate privilege can be adequately protected through a post-search review to screen out any legislative documents that may have been seized incidentally.
These competing arguments present the court with difficult and novel issues of law, but they do not address what is—in my judgment— a more fundamental problem with the FBI’s search of Congressman Jefferson’s office. I maintain that even if the FBI had been able to conduct its search in a manner that avoided all contact with legislative documents, this raid would nonetheless constitute a serious affront to the House of Representatives and a threat to the proper functioning of our system of separated powers.
The forcible intrusion of executive agents into the Capitol Complex raises a concern that is not present when law enforcement searches a member’s home or even a member’s district office. This concern does not relate to a member’s legislative privilege or to any right of individual members. Instead, such an invasion violates the dignity of the House itself, and infringes its right to exercise control within its own walls.
That the House has such a right cannot be doubted. Nearly 200 years ago, in Anderson v. Dunn, the Supreme Court found that “the right of the respective Houses to exclude from their presence, and their absolute control within their own walls, carry with them the right to punish contempts committed in their presence.” The contrary view, namely that the House would have to rely on the other branches for its own protection, would lead:
to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them; composed of the most distinguished citizens, selected and drawn together from every quarter of a great nation; whose deliberations are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity which unlimited confidence in their wisdom and purity can inspire; that such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested.
Although the exercise of the contempt power by each House of Congress is not limited to conduct committed literally “within the walls” of the Capitol, Anderson demonstrates that the most fundamental reason for recognizing the power is that the House and Senate must be able to control their immediate environment, and to prevent affronts to their dignity and disruption of their proceedings by outside forces. Moreover,
Compare this to the principle endorsed by the Justice Department’s search of Representative Jefferson’s office, namely that the executive and judicial branches can authorize the FBI to enter the congressional office buildings (and presumably the Capitol itself) without the permission of—indeed without even providing notice to—the House or its leadership. No consideration seems to have been given to how the specter of uninvited federal agents in the Capitol Complex not only insults the dignity of the House, but threatens its very physical security. If nothing else, the fact that in more than 200 years, despite many criminal investigations, prosecutions and convictions of members of Congress, law enforcement authorities had never conducted a similar search should have been a tip off as to the potential ramifications.
The outrageous nature of the action is aggravated by the fact that there was so little reason for it. I will leave aside the puzzling question of why the Justice Department felt it necessary to take the unprecedented step of obtaining a search warrant when the materials sought were apparently covered by a grand jury subpoena served months before. Assuming there was a true law enforcement need to conduct a search, what harm would have come from notifying the House leadership and requesting its permission? The chances are very good that the requested permission would have been granted or, at the very least, that steps would have been taken to secure the requested materials until any issues could be resolved. If the claim is made that notifying the House leadership would somehow have risked the destruction or disappearance of materials sought by the warrant, that charge is both insulting and frankly preposterous.
Recognizing the House’s right to exercise control within its own walls is not the equivalent of declaring a member of the House to be “above the law.” In the first place, it is not up to Representative Jefferson or any other individual member as to whether the FBI is allowed access to the Capitol Complex. In the second place, as already noted, any assumption that the House or its leadership would use its power to shield a member from criminal investigation is unwarranted, and the mere possibility that such abuse could occur is hardly reason for overturning two hundred years of history and tradition.
By contrast, establishing a precedent that would allow the executive literally to breach the walls of Congress, with or without judicial permission, would be very dangerous. If Chief Judge Hogan’s decision were to ratify this precedent, it would threaten a dramatic change in the relationship between the branches, with potential ramifications that may be only dimly perceived today.
To defuse the interbranch conflict created by this ill-advised search, it may not be necessary for the court to hold that the House or Senate is, under all circumstances, the final authority on execution of search warrants in the Capitol Complex. Rather, the court can follow the example of past cases where, facing other sensitive questions of executive-legislative relationships (such as whether Congress could subpoena sensitive national security information from a telephone company over the objections of the executive), courts have declined to decide the constitutional issue presented and instructed the other branches to attempt to resolve their differences through negotiation. The House, in its papers, has suggested something along those lines.
Hopefully, the outcome of those negotiations will make it unnecessary to revisit this subject for the next two hundred years.