#6: Freezers Full of Speech and Debate

Blog Post #6

The Speech or Debate Clause is intended to protect members of Congress from harassment on the basis of the things they say on the floor of the chamber. As the textbook notes, this originated as a way to promote the independence of the English Parliament from the Crown. Read this detailed annotation of the Speech or Debate Clause from the Legal Information Institute. Of course, sometimes members of Congress are up to no good, so it’s important to draw the line between harassing members of Congress for their speech and allowing them to hide evidence of corruption behind the protection of the Speech or Debate Clause.

This is essentially what happened in the case of Rep. William Jefferson. The background of this case as recounted by the Justice Department in its petition for a writ of certiorari in the caseUS v. Rayburn House Office Building (2007).

 In the spring of 2005, the government began investigating whether Representative Jefferson had accepted payments for undertaking official acts as a Congressman to promote business ventures in West Africa. The government also investigated whether, in furtherance of those efforts, the Congressman planned to bribe officials in Nigeria and elsewhere.

The government discovered, among other things, that Representative Jefferson’s family had received an equity stake in a Nigerian company and more than $400,000 in cash in exchange for the Congressman’s promotional efforts. The Congressman also accepted a briefcase containing $100,000 with the understanding that he would forward it to a high-level Nigerian official. During a search of Representative Jefferson’s Washington, D.C., residence, $90,000 was found inside the Congressman’s freezer. Two individuals, including one of Representative Jefferson’s former staff members, have pleaded guilty to bribing and conspiring to bribe the Congressman.

In the summer of 2005, subpoenas were issued to Representative Jefferson and his chief of staff. The government worked for months to obtain the responsive records, but none was ever produced. See App., infra, 29a n.7; C.A. App. 314-315. Having “exhausted all reasonable and timely alternative means of obtaining the evidence sought,” the government applied to the United States District Court for the District of Columbia for a warrant to search Representative Jefferson’s Capitol Hill office. The warrant sought paper documents and computer files relating to the crimes under investigation. It did not seek any “legitimate legislative material that would be considered privileged under the Speech or Debate Clause.” The district court found probable cause to believe that evidence of criminal activ ity would be found in Rayburn House Office Building, Room 2113, and issued the warrant.

On May 20, 2006, the warrant was executed in accordance with special court-approved procedures designed to limit interference with congressional activity. Federal Bureau of Investigation (FBI) agents with no other role in the investigation conducted the search on a Saturday evening, outside of the office’s normal business hours. See ibid. The non-case agents reviewed paper documents in the office for responsiveness to the warrant and were to seize only responsive records. They were forbidden thereafter from disclosing any politically sensitive or non-responsive items inadvertently seen during the search. They ultimately seized two boxes of responsive paper documents. The agents also copied the computer hard drives in the office, without reviewing their contents, so that the computer files, along with the seized paper documents, could later be searched off-site by a filter team. The filter team, which consisted of persons with no other involvement in the investigation, was to review the paper documents and computer files for responsiveness and privilege and provide to the prosecution team only those documents that it found to be responsive and not potentially privileged. Potentially privileged documents would be given to the district court for review.

Following the execution of the warrant and before the filter teams gained access to the materials, Representative Jefferson moved for the return of all of the seized materials pursuant to Federal Rule of Criminal Procedure. In response, the government agreed to provide Representative Jefferson with copies of all of the seized materials so that he could raise speech or debate claims in the district court before any documents were transferred to the prosecution team. The day after Representative Jefferson filed his motion, the President directed that the materials be sealed, placed in the custody of the Solicitor General, and not reviewed by Executive Branch agents. That directive expired on July 9, 2006.

The district court found “no support” for Representative Jefferson’s assertion of a right to remove purportedly privileged materials before the search.  …

Representative Jefferson appealed and sought a stay of the district court’s order. …

While the appeal was pending, Representative Jefferson was charged in a 16-count indictment in the United States District Court for the Eastern District of Virginia. The indictment charges Representative Jefferson with, inter alia, soliciting bribes; depriving citizens of honest services; violating the Foreign Corrupt Practices Act, 18 U.S.C. 371; engaging in a pattern of racketeering activity; obstructing justice; money laundering; and conspiracy.

Following expedited briefing, a divided panel of the court of appeals held that the search of the paper files in Representative Jefferson’s office violated the Speech or Debate Clause and barred the contemplated further role of the filter team in identifying legislative- act materials.

The court then held that the Speech or Debate Clause includes an “absolute” “non-disclosure privilege.”  Acknowledging that no decision of [the Supreme] Court had recognized such a privilege, the court purported to ground its holding in circuit law that ad dressed a subpoena seeking legislative documents. Although this case involved a search warrant in a criminal investiga ion, not a subpoena in a civil action, the court subsumed its non-disclosure rule in the “testimonial privilege un er the Speech or Debate Clause,” despite acknowledg ng the district court’s view that “a seizure of documents did not involve a testimonial element.”

In the end, the Supreme Court denied the Justice Department’s petition for a writ of certiorari. As Ben Winograd for SCOTUSblog explains:

the Justices declined to enter a dispute involving the first ever executive raid of an office of a sitting member of Congress. As part of an ongoing corruption probe, FBI agents had discovered $90,000 in cash in a freezer at the Capitol Hill home of Rep. William Jefferson (D-La.). A year later, after receiving a tip from one of the Congressman’s aides, agents obtained a search warrant for his legislative office as well. To avoid separation of powers concerns, the warrant required a “filter team” of separate agents to screen all materials for legislatively privileged documents. But a D.C. Circuit panel held that under the Constitution’s “Speech and Debate Clause,” Rep. Jefferson should have received an opportunity to review the materials before, not after, their seizure by the Executive. The government’s petition argued the clause was designed to shield members of Congress from liability for legislative acts, not criminal investigations, and as a practical matter would impair corruption probes.  The petition was denied March 31.

The Supreme Court has essentially left the Circuit Courts to deal with the question of whether there are any real limits to the protection offered members of Congress by the Speech or Debate Clause. The 9th Circuit took up the mantle more recently in a case called US v. Renzi.

Paper Topic 6: Are there real limits to the protection offered by the Speech or Debate Clause? What kept the Supreme Court from granting certiorari in the Rayburn Office Building and Renzi cases? Is the Speech or Debate Clause living up to its original purpose?

Suggested Reading: Green, A. J. 2012. “United States v. Renzi: Reigning in the Speech or Debate Clause to Fight Corruption in Congress Post-Rayburn.” Brigham Young University Law Review 2012:493.



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