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Constitution Violated in Jefferson FBI Search

I didn't study the arguments, and had just guessed Jefferson's constitutional arguments were specious at best. Just the desperate pleadings of a criminal caught in the act, but apparently there were sufficient constitutional protections to prompt a federal appeals court to rule today that the FBI violated the Constitution when they entered Jefferson's office and read and seized documents.

This seems to be the linchpin:

"The review of the Congressman's paper files when the search was executed exposed legislative material to the Executive" and violated the Constitution, the court wrote. "The Congressman is entitled to the return of documents that the court determines to be privileged."

Since they read and seized documents that did not pertain directly to their investigation of criminal wrongdoing, they crossed an important line.

Officials have said they took extraordinary steps, including using an FBI "filter team" not involved in the case to review the congressional documents. Government attorneys said the Constitution was not intended to shield lawmakers from prosecution for political corruption.

The court was not convinced. It said the Constitution insists that lawmakers must be free from any intrusion into their congressional duties. Such intrusion, even by a filter team, "may therefore chill the exchange of views with respect to legislative activity," the court held.

Politics sometimes makes for strange bedfellows:

The case has cut across political party lines. Former House Speakers Newt Gingrich, a Republican, and Thomas Foley, a Democrat, filed legal documents opposing the raid, along with former House Minority Leader Bob Michel, a Republican.

Conservative groups Judicial Watch and the Washington Legal Foundation were joined by the liberal Citizens for Responsibility and Ethics in Washington in supporting the legality of the raid.

Following his indictment, Jefferson's supporters accused the Bush administration of targeting black Democrats to shift attention from the legal troubles of Republican congressmen.

It's difficult to argue that a guy caught with $90,000 in cold cash stuffed in his freezer (along with the other evidence of wrongdoing they claim to have against Jefferson) is innocent. Nonetheless, Jefferson has indeed proclaimed exactly that.

But if the FBI truly believes, as they have stated, that they already had adequate evidence of Jefferson's wrongdoing before they seized the documents, it does beg the question as to why they crossed this line and took these kind of desperate measures. It adds weight to Jefferson's argument that he was being unfairly targeted. At this point in the Justice Department's history, with a huge controversy swirling around AG Gonzales, that's not a good thing for the executive branch.

You'd think Alberto Gonzales would know better. The fact that he doesn't know better -- or knows better and doesn't care -- only supports the argument that the Department of Justice, with respect to their upholding of the Constitution, may be more corrupt than some of the criminals they are prosecuting.

It's clear from the US Attorney congressional hearings that the DoJ has become severely politicized. This court decision certainly supports that argument.

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Comments (5)


I see the court agrees with pretty much everything I said on this thread about the search.

As I discuss here, I think the concurring opinion has the better of the argument. The majority suggests hypothetical processes which the FBI could instead follow when needing to search a crooked Congressman's office. Their flaw is that they implicitly assume, in those processes, the Congressman will, honestly and in good faith, assist in narrowing down the scope of the contested documents. In reality, FBI agents need to distrust anything the criminal suspect tells them. The majority opinion doesn't look at what happens when the Congressman tells the FBI: "those 10 file cabinets over there are privileged." Well, the FBI, in every case (I would hope), would of necessity have to seal up all 10 of those filing cabinets and take them over to the judge for review, under the majority's analysis.

The case reached the right result (return the privileged material, admit the unprivileged material), but it's reasoning and thought process was horribly muddled and unrealistic.


dang, while i can understand why the ruling went that way, i don't agree with their reasoning.

be that as it may, if i remember correctly, the FBI went the the courts and got a search warrant for the congressional office. isn't that what they are supposed to do? it's not like the FBI just barged in.

what i find ironic is that the court ruling could very easily be sited by those who favor executive privilege.

"Such intrusion, even by a filter team, "may therefore chill the exchange of views with respect to legislative activity," the court held."

just switch out legislative activity and replace with executive activity.

oh, and the claim that the bush administration was targeting black Democrats? why is it any time i see a black democrat accused of anything the first words i hear out of their months is "this is racist"? not going to fly when you have $90k in the freezer. enough said.

Lee Ward:

mantis - you were indeed "on the money" with your analysis 15 months ago. Nicely done!

PatHMV - Your arguments are sound, but I agree with the courts that Jefferson's Constitutional rights as an office holder, and the constitutional provisions that protect his office and the documents therein, supercede the criminal investigation.

Jefferson was, at the point of the search and seizure, an innocent man. He's still innocent at this moment, as a matter of fact, and remains innocent until found guilty in the court of law.

The mere suspicion of his guilt is inadequate as a reason to violate the constitutional protections.

Ke_ - I'm sure the FBI got a proper search warrant, but the judge issuing the warrant wasn't qualified, or required in this case I believe, to weigh the constitutional merits of the warrant request.

Besides, I think it was the privileged nature of the documents that were searched and seized that was in question. If the warrant had been for the search for drugs or illegal weapons it might be a different case. In this instance the documents were protected, no?

U.P. Man:

So, are the Democrats going to stop calling on President Bush advisor to testify before congress on none illegal activities?


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