Technically the case appears to be a “win” for the Justice Department in the sense that it was not forced to return the non-privileged materials Congressman Jefferson had sought. However, this victory is actually less than Pyrrhic because not only is the Justice Department stuck with a very bad opinion (from its perspective) but it may have no way of seeking further review since it got what it was asking for from the court. Whether most of the opinion should be regarded as dicta (as the concurring opinion of Judge Henderson suggests) will undoubtedly be an issue in future cases.
For the long-term, the most important aspect of the majority opinion is that it establishes a “non-disclosure” Speech or Debate privilege. What this apparently means is that privilege protects the confidentiality of certain types of legislative information (exactly what type is a matter that will need to be explored later on), as opposed to only protecting against the “questioning” of a Member of Congress. This makes the Speech or Debate privilege more like a typical secrecy privilege, such as executive privilege, deliberative process privilege or attorney-client privilege, and less like the Fifth Amendment testimonial privilege. Whether this is a good or bad thing (or some of both) I will discuss at a later time.
In the nearer term, however, there are two possible impacts of significance. First, it is not clear why the logic of the opinion would be limited to searches of congressional offices. Although the majority seems to assume that its rationale is limited to congressional offices, it would seem, as the concurring opinion points out, that it could apply equally to searches of a Member’s home, car, etc. (The lawyers for Senator Stevens, among others, may be considering this issue as we speak). There certainly is a strong likelihood that Members will have Speech or Debate privileged materials in their homes. If Congressman Jefferson had wrapped his $90,000 in a copy of legislation he had introduced, would that have rendered the search of his home unconstitutional?
The same questions could be asked of searches directed at former Members, who may have kept much legislative material from their days in office (documents in a Member’s personal office are treated as his or her personal property and they may take them when they leave office). Similarly, the same issue may arise with regard to searches directed at congressional staffers or former staffers. As the concurrence notes, surveillance of Members (eg, wiretaps) could arguably be prohibited because of the likelihood that communications of a legislative nature would be overheard. (It is less obvious that interviews of congressional staff would be impacted by the decision unless the Speech or Debate Clause is interpreted to prohibit staff from voluntarily disclosing legislative information).
Second, and perhaps just as importantly, the decision does appear to legitimize the search of congressional offices, stating that “[t]he Congressman does not dispute that congressional offices are subject to a search pursuant to a search warrant issued by the federal district court.” This concession may be regretted by Congress because there are reasons, wholly apart from the Speech or Debate Clause, why Congress should object to forced executive intrusion into the Capitol complex. These reasons are explained in my prior post, which was written shortly before the district court decision in this case.
Moreover, although the decision may make it difficult and cumbersome for the FBI to conduct searches in Congress, it also could exacerbate the problem of this executive intrusion. The opinion allows a search warrant to be issued without any notice to Congress, and it does not prohibit federal agents from seizing and sealing the area to be searched prior to consultation with a Member or Congress. One can imagine that the Justice Department, if it wished, could get a search warrant, obtain entry to the office of a Member, and simply refuse access to the office until such time as it was able to reach agreement with the Member on how the actual search was to be conducted. Such a situation would be even more intrusive and disruptive than the