Jefferson Round 3

As I predicted in earlier posts, the Justice Department is finding it hard to live with the implications of the DC Circuit’s decision in United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case).  It is now seeking a rehearing by the full court, contending that the decision hampers its ability not only to search congressional offices, but also to use other law enforcement tools in investigations of Members of Congress.  As described by John Bresnahan of the Politico:

“By interpreting the Clause to include an absolute non-disclosure privilege, the panel has not only frustrated the execution of search warrants supported by probable cause, it has invited questions concerning the lawfulness of essential tools in investigating and prosecuting corruption  – including electronic surveillance, consensual monitoring, searches of home offices, and voluntary interviews of staffers – ‘that have never been considered problematic,'” Justice Dept. prosecutors wrote in their filing.

It is not surprising that the DC Circuit’s decision is being interpreted to apply to searches of locations other than congressional offices.  As I noted in a prior post: “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 extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle forbids it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint. 

The application of the decision to staffer interviews is less clear.  From talking with the Hill, I know that there are those who are interpreting the decision to forbid the Justice Department from conducting voluntary staff interviews without a Member’s consent, but this seems like a stretch.  Since there is no compulsion in a voluntary interview, it is difficult to see where the constitutionally proscribed “questioning” occurs (unless the Speech or Debate Clause is to be interpreted to forbid staff from talking with the press or others outside of Congress on a voluntary basis). 

Regardless, the Justice Department may face a significant hurdle in obtaining en banc review of the DC Circuit’s decision.  Technically, it won the appeal to the DC Circuit because Jefferson did not get any of the relief that he was seeking.  Normally, the victorious party cannot appeal a decision, even if it may be adversely impacted by the reasoning of the decision in the future.  I will have to review the DOJ brief to see if there is some exception applicable here.   

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