United States v. Rayburn House Office Bldg., Room 213 - Petition

Docket number: 
No. 07-816
Supreme Court Term: 
2007 Term
Court Level: 
Supreme Court


No. 07-816

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

RAYBURN HOUSE OFFICE BUILDING, ROOM 2113,
WASHINGTON, D.C. 20515

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DARYL JOSEFFER
Assistant to the Solicitor
General
STEPHAN E. OESTREICHER, JR.
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the Speech or Debate Clause provides a non-disclosure privilege that bars Executive Branch agents from executing a judicially issued warrant in a Member's office to search for non-legislative records of criminal activity.

PARTIES TO THE PROCEEDINGS

The United States of America is the petitioner. Rep resentative William J. Jefferson is the respondent. Ray burn House Office Building Room 2113 is the congres sional office of Representative Jefferson.

In the Supreme Court of the United States

 

No. 07-816

UNITED STATES OF AMERICA, PETITIONER

v.

RAYBURN HOUSE OFFICE BUILDING, ROOM 2113,
WASHINGTON, D.C. 20515

 

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of cer tiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 39a) is reported at 497 F.3d 654. The opinion of the dis trict court (App., infra, 40a-72a) is reported at 432 F. Supp. 2d 100.

2. JURISDICTION

The judgment of the court of appeals was entered on August 3, 2007. A petition for rehearing was denied on November 9, 2007 (App., infra, 73a-74a). The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Speech or Debate Clause provides that, "for any Speech or Debate in either House, [Senators and Repre sentatives] shall not be questioned in any other Place." U.S. Const. Art. I, § 6, Cl. 1.

STATEMENT

This case arises out of the government's execution in the office of Representative William J. Jefferson of a search warrant seeking unprivileged evidence of crimi nal activity-including bribery and other public corrup tion offenses-after exhausting all reasonable efforts to obtain the evidence through other means. A divided court of appeals concluded that, in the course of execut ing the warrant, government agents violated the Speech or Debate Clause by their incidental exposure to legisla tive-act materials located in Representative Jefferson's office-even though the warrant was executed under procedures designed to minimize any such exposure and even though the sole object of the warrant was un privileged materials. The full court of appeals denied the government's petition for rehearing en banc by a 5-4 vote (with one judge recused).

The court's novel and expansive non-disclosure privi lege incorrectly extends the Speech or Debate Clause's limited protections to search warrants, and, in so doing, casts doubt on searches of other places and a wide range of other investigatory techniques deemed essential to ferreting out corruption and criminal conduct by both Members of Congress and persons who deal with them. The court's decision warrants review by this Court be cause it fundamentally misinterprets a crucial structural guarantee in the Constitution. Its effect is to critically undermine the Executive Branch's ability to investigate and prosecute corrupt activity in and affecting the Leg islative Branch.

The court of appeals' error warrants review now, be cause its opinion controls in the seat of the Nation's gov ernment and thereby affects virtually every public cor ruption investigation involving the Legislative Branch- investigations that serve a vital role in protecting the integrity of our democratic government. The court of appeals' decision warrants reversal because the Speech or Debate Clause by its terms protects "Speech or De bate"; it does not protect against the disclosure of infor mation through a criminal search warrant, which in volves no "question[ing]" of a Member of Congress. U.S. Const. Art. I, § 6, Cl. 1. Only this Court can resolve this important question. Until it does so, investigations of corruption in the Nation's capital and elsewhere will be seriously and perhaps even fatally stymied.

1. In the spring of 2005, the government began in vestigating whether Representative Jefferson had ac cepted payments for undertaking official acts as a Con gressman to promote business ventures in West Africa. The government also investigated whether, in further ance of those efforts, the Congressman planned to bribe officials in Nigeria and elsewhere. See App., infra, 42a.

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 pro motional efforts. C.A. App. 12-13. The Congressman al so accepted a briefcase containing $100,000 with the un derstanding that he would forward it to a high-level Ni gerian official. Id. at 15. During a search of Represen tative Jefferson's Washington, D.C., residence, $90,000 was found inside the Congressman's freezer. Ibid. Two individuals, including one of Representative Jefferson's former staff members, have pleaded guilty to bribing and conspiring to bribe the Congressman. Id. at 9-10 & nn.2-3.

2. In the summer of 2005, subpoenas were issued to Representative Jefferson and his chief of staff. The gov ernment 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 rea sonable and timely alternative means of obtaining the evidence sought," App., infra, at 69a, the government applied to the United States District Court for the Dis trict of Columbia for a warrant to search Representative Jefferson's Capitol Hill office, id. at 3a. The warrant sought paper documents and computer files relating to the crimes under investigation. Id. at 42a. It did not seek any "legitimate legislative material that would be considered privileged under the Speech or Debate Clause." Ibid.; see id. at 13a. 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. Id. at 44a.

On May 20, 2006, the warrant was executed in accor dance with special court-approved procedures designed to limit interference with congressional activity. See App., infra, 4a-5a. Federal Bureau of Investigation (FBI) agents with no other role in the investigation con ducted 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 re sponsiveness to the warrant and were to seize only re sponsive records. They were forbidden thereafter from disclosing any politically sensitive or non-responsive items inadvertently seen during the search. Id. at 4a. They ultimately seized two boxes of responsive paper documents. Id. at 5a. The agents also copied the com puter 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. See id. at 4a. 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 pro vide to the prosecution team only those documents that it found to be responsive and not potentially privileged. Id. at 4a-5a. Potentially privileged documents would be given to the district court for review. Id. at 5a.

3. Following the execution of the warrant and before the filter teams gained access to the materials, Repre sentative Jefferson moved for the return of all of the seized materials pursuant to Federal Rule of Criminal Procedure 41. See App., infra, 5a-6a. 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. C.A. App. 132, 136. The day after Representative Jefferson filed his motion, the President directed that the materials be sealed, placed in the custody of the So licitor General, and not reviewed by Executive Branch agents. That directive expired on July 9, 2006. App., infra, 6a.

On July 10, 2006, the district court denied the Con gressman's Rule 41 motion. App., infra, 40a-72a. Be cause Representative Jefferson "ha[d] not been ques tioned" within the meaning of the Speech or Debate Clause, the court held that the Clause "was not trig gered by the execution of the search warrant." Id. at 55a. The court reasoned that "having one's property subjected to the execution of a valid search warrant does not have a testimonial component." Ibid. The court also ruled that the warrant's execution "did not imper missibly interfere with Congressman Jefferson's legisla tive activities" because the warrant sought only evidence of criminal activity, not any materials within the "legiti mate legislative sphere," and was issued by a neutral judicial officer upon a finding of probable cause to be lieve that evidence of criminal activity would be found in the Congressman's office. Id. at 58a.

The district court found "no support" for Represen tative Jefferson's assertion of a right to remove purport edly privileged materials before the search. App., infra, 58a. In the court's view, the non-case agents' "inciden tal review" of speech or debate material during their search for responsive documents did not undermine the Clause's purpose of preserving legislative independence, because "Congressman Jefferson may never be ques tioned regarding his legitimate legislative activities, [he] is immune from civil or criminal liability for those activi ties, and no privileged material may ever be used ag ainst him in court." Id. at 61a.

4. Representative Jefferson appealed and sought a stay of the district court's order. On July 28, 2006, in response to the stay motion, the court of appeals issued an order that enjoined the government from reviewing the seized materials and established an ex parte proce dure for determining which of the seized materials, "if any," are "records of legislative acts." App., infra, 75a. The order directed the district court to provide Repre sentative Jefferson with copies of "all physical docu ments seized," to search the copies of the computer hard drives "for the terms listed in the warrant," to provide the Congressman with a list of responsive records, and, after the Congressman had made any privilege claims, to "make findings regarding whether the specific docu ments or records are legislative in nature." Id. at 76a. In contrast to the procedures approved by the district court, the court of appeals' order did not permit the gov ernment's filter team to assist the district court by re viewing documents over which Representative Jefferson claimed privilege and either conceding or contesting his claims in an informed manner.

After the Congressman claimed privilege on remand for almost half of the seized materials (more than 18,000 pages), see Resp. C.A. Br. 24; Gov't C.A. Br. 25 n.3, the court of appeals modified its Remand Order to grant the government access to the materials that Representative Jefferson "conceded on remand are not privileged." 11/14/06 Order 1. The district court has not yet entered any findings in response to the court of appeals' Remand Order.

5. 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. App., infra, 8a & n.1. 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; en gaging in a pattern of racketeering activity; obstructing justice; money laundering; and conspiracy. App., infra, 8a n.1.

6. 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. App., infra, 1a-39a.

a. At the outset, the court of appeals observed that "neither party suggests that the return of the indict ment divests the court of appeals of jurisdiction or ren ders this appeal moot." App., infra, 9a. The court then stated that it "agree[d]," explaining that the indictment did not divest it of jurisdiction under the collateral order doctrine because "[l]etting the district court's decision stand until after the Congressman's trial would * * * allow the Executive to review privileged material in vio lation of the Speech or Debate Clause." Ibid.1

The court then held that the Speech or Debate Clause includes an "absolute" "non-disclosure privilege." App., infra, 11a, 13a. Acknowledging that no decision of this Court had recognized such a privilege, the court purported to ground its holding in circuit law that ad dressed a subpoena seeking legislative documents. Id. at 11a (citing Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995)). Although this case involved a search warrant in a criminal investiga tion, not a subpoena in a civil action, the court subsumed its non-disclosure rule in the "testimonial privilege un der the Speech or Debate Clause," despite acknowledg ing the district court's view that "a seizure of documents did not involve a testimonial element." Id. at 14a.

The court also recognized that "the search warrant sought only materials not protected by the Speech or Debate Clause," App., infra, 13a, but concluded that the search nonetheless violated the Constitution because "[i]n order to determine whether the documents were responsive to the search warrant, FBI agents had to re view all of the papers in the Congressman's office, of which some surely related to legislative acts." Id. at 13a. The court believed that "compelled review by the Executive," id. at 15a, inevitably "disrupt[s] the legisla tive process" by exposing "frank or embarrassing state ments," id. at 13a, thereby "chill[ing] the exchange of views with respect to legislative activity." Id. at 13a- 14a. The court stated that the government may search a congressional office only if it first provides the Mem ber with an "opportunity to identify and assert the privi lege with respect to legislative materials before their compelled disclosure to Executive agents," providing no explanation as to how such an opportunity could be af forded. Id. at 16a (emphasis added).2

As a remedial matter, the court of appeals deter mined that Representative Jefferson is entitled to the return of privileged materials, but not to the return of unprivileged materials. App., infra, 22a-24a. In reject ing Representative Jefferson's claim for the return of unprivileged documents, the court reasoned that deter rence concerns were not implicated because the govern

ment had executed the search warrant in good faith and that, absent a claim of disruption to the functioning of the Representative's office, separation of powers con cerns precluded the remedy sought. Id. at 21a-22a. Thus, the court affirmed the district court's denial of Representative Jefferson's Rule 41 motion, but left in place the conditions of the Remand Order. See id. at 22a-23a.

b. Judge Henderson concurred in the judgment to the extent that it "affirm[ed] the district court's denial of [the Rule 41] motion," App., infra, 26a, but she dis agreed with the majority's finding of a constitutional violation. Id. at 24a-39a. Judge Henderson explained that a search does not constitute "questioning" within the meaning of the Clause because it does not require a Member "to do anything." Id. at 31a. Considering that "what the Clause promotes is the Member's ability to be open in debate-free from interference or restriction -rather than any secrecy right," Judge Henderson con cluded that "it is the Executive Branch's evidentiary use of legislative acts, rather than its exposure to that evi dence, that violates the Clause." Id. at 33a, 38a n.12. The majority's contrary holding, Judge Henderson ex plained, "would jeopardize law enforcement tools 'that have never been considered problematic,'" including searches of Members' homes or cars, as well as surveil lance of Members or staffers. Id. at 36a-37a (quoting Gov't C.A. Br. 37).

c. By a 5-4 vote (with Judge Kavanaugh recused), the court of appeals denied the government's petition for rehearing en banc. App., infra, 73a-74a.

7. Representative Jefferson's trial is currently sche duled to begin on February 25, 2008, and the govern ment does not intend to seek a delay in the hope of se curing additional evidence after the district court has completed its review of the Congressman's privilege claims. As explained below, the evidence seized in Rep resentative Jefferson's office remains relevant to the government's ongoing investigation of others who may have been involved in criminal activity with Representa tive Jefferson.

REASONS FOR GRANTING THE PETITION

Investigations designed to ferret out congressional corruption (such as bribery) find their nerve center in the Nation's capital. Because of that fact, decisions of the United States Court of Appeals for the District of Columbia Circuit have a uniquely important role in defining the Constitution's express protection for legis lators: the Speech or Debate Clause. In this case, the District of Columbia Circuit extended the reach of the Clause in a manner that cannot be reconciled with its text or purpose and that threatens to undermine, rather than reinforce, the separation of powers by mak ing congressional offices "a sanctuary for crime." Uni ted States v. Brewster, 408 U.S. 501, 521 (1972) (quoting Williamson v. United States, 207 U.S. 425, 439 (1908)).

The divided panel construed the Speech or Debate Clause to protect against "compelled disclosure of privi leged material to the Executive during execution of [a] search warrant" for a congressional office. App, infra, 2a. The court of appeals recognized that "[t]he Supreme Court has not spoken to the precise issue at hand" but it went on to locate a "non-disclosure" privilege in the Clause. Id. at 11a. That holding is fundamentally incor rect. The Clause does not confer a confidentiality privi lege; to the contrary, its core protection exists for public acts, such as votes and floor statements, and it applies without regard to whether a Member has attempted to preserve confidentiality; indeed, it applies even to mate rial he has shared with the world. Thus, as the Third Circuit has held, "the privilege when applied to records or third-party testimony is one of nonevidentiary use, not of non-disclosure." In re Grand Jury Investigation, 587 F.2d 589, 597 (1978) (Eilberg).

The court of appeals' absolute rule against compelled disclosure of Speech or Debate material to the Execu tive Branch calls vital investigative techniques into im mediate and serious question with respect to public cor ruption probes. Although this case involves a search of a Capitol Hill office (a concededly extraordinary event), the court's decision threatens to impede searches of Members' homes, vehicles, or briefcases. Also impor tant are the potential implications for wiretaps and pen registers directed at Members. Even using techniques designed to minimize the interception of privileged con versations, officers typically hear privileged communica tions or identify calls pertaining to legislative acts while seeking unprivileged evidence of crime.

This Court's guidance is needed. The District of Co lumbia Circuit denied rehearing en banc by a 5-4 vote, and clarification or reversal of its erroneous decision at some indefinite time in the future cannot alleviate the immediate cloud over ongoing public corruption investi gations. The court of appeals' decision affects all con gressional investigations because it governs investiga tions in the District of Columbia-the seat of our Na tion's government. The decision also has a chilling effect in other jurisdictions, because the Department of Justice must weigh the need for evidence in those jurisdictions against the potential that courts will hold that investiga tions were tainted by the use of previously uncontrover sial investigative techniques. The petition for a writ of certiorari should therefore be granted.

A. The Speech Or Debate Clause Does Not Protect Against The Mere Disclosure Of Legislative Materials In The Execution Of A Search Warrant

The court of appeals fundamentally misconstrued the Speech or Debate Clause by holding that it includes an absolute non-disclosure component. The court applied that erroneous principle to prevent Executive Branch officers from coming into even incidental contact with legislative-act materials in the course of searching for unprivileged evidence of unprivileged criminal conduct. Those holdings cannot be reconciled with the text, pur pose, or history of the Clause.

1. The Speech or Debate Clause provides that, "[f]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." U.S. Const. Art. I, § 6, Cl. 1. The Clause strikes a balance within the separation of powers. It "is broad enough to insure the historic independence of the Legis lative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Mem bers." United States v. Brewster, 408 U.S. 501, 525 (1972). It is well established that the Clause does not "confer a general exemption upon Members of Congress from liability or process in criminal cases." Gravel v. United States, 408 U.S. 606, 626 (1972).

Consistent with its text, "[t]he heart of the Clause is speech or debate in either House." Gravel, 408 U.S. at 625. This Court has extended the Clause to preclude inquiry into all "legislative acts," in light of the Clause's purpose "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." Id. at 617, 624-625. Nonetheless, "the courts have extended the privilege to matters beyond pure speech or debate * * * only when necessary to prevent indirect impairment of such deliberations." Id. at 625 (emphasis added). The Clause "does not extend beyond what is necessary to preserve the integrity of the legis lative process." Brewster, 408 U.S. at 517; see Forrester v. White, 484 U.S. 219, 224 (1988) (courts have "been careful not to extend the scope of [the Clause] further than its purposes require"). And it does not extend to non-legislative acts like "taking a bribe," which "is, obvi ously, no part of the legislative process or function." Brewster, 408 U.S. at 526.

In keeping with that balance, the Clause gives Mem bers three protections. First, it grants them civil and criminal immunity for legislative acts. See Doe v. McMillan, 412 U.S. 306, 311-312 (1973); United States v. Johnson, 383 U.S. 169, 184-185 (1966). Second, the Clause guarantees that a Member, or his alter ego, "may not be made to answer" questions about his legislative acts. Gravel, 408 U.S. at 616. Third, the Clause bars the use of legislative-act evidence against a Member. Uni ted States v. Helstoski, 442 U.S. 477, 487 (1979). Those three protections-immunity from suit, a testimonial privilege, and a prohibition on use, all limited to legisla tive acts-are "broad enough to insure the historic inde pendence of the Legislative Branch, essential to our sep aration of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members." Brewster, 408 U.S. at 525. Thus, while the Clause protects the legitimate preroga tives of the Legislative Branch, it does not "make Mem bers of Congress super-citizens, immune from criminal responsibility." Id. at 516.

2. The court of appeals erred by its novel recogni tion of a "non-disclosure privilege" that barred the Ex ecutive Branch's execution of the search warrant in this case. App., infra, 11a, 17a. The protections of the Speech or Debate Clause are not grounded in confidenti ality and the Clause's testimonial privilege, to which the court tied its "non-disclosure privilege," does not apply to search warrants. And even if search warrants impli cated the Clause in some circumstances, incidental re view of legislative-act materials is not so disruptive of legislative functions as to justify the extension of the Clause to invalidate the Executive Branch's execution of a search warrant seeking non-legislative material in a criminal public corruption investigation.

a. The text of the Clause, limited to speech or de bate in either House, describes activities that are gener ally public in nature. The history of the Clause explains the textual focus on public debate. The Clause's "tap roots [lie] in the Parliamentary struggles of the Six teenth and Seventeenth Centuries," during which the Crown prosecuted Members of Parliament "for 'sedi tious' speeches." Tenney v. Brandhove, 341 U.S. 367, 372 (1951). The Clause, unlike traditional confidentiality privileges such as the attorney-client privilege, protects public, non-confidential activities, such as floor debates, committee hearings, votes, and the drafting of bills and committee reports. See Gravel, 408 U.S. at 624; Doe, 412 U.S. at 311-313. These are matters that the Execu tive Branch is free to review without violating the Clause, but may not use against a Member in a criminal or civil case.

Also, unlike confidentiality-based privileges, the Clause's protection of legislative materials or actions applies regardless of whether a Member has attempted to maintain their confidentiality. As Judge Henderson explained, "what the Clause promotes is the Member's ability to be open in debate-free from interference or restriction-rather than any secrecy right." App., infra, 33a. Neither the text nor the history of the Clause sup ports the court of appeals' apparent inference that the Speech or Debate Clause provides disparate protection for two classes of legislative acts, those conducted in public and those conducted under a cloak of secrecy.

Although the court of appeals located its non-disclo sure privilege within the "testimonial" component of the Clause, see App., infra, 2a, the execution of a search warrant by law enforcement agents does not result in "testimony" by the target of the search (indeed, here, Congressman Jefferson was not even present for the search). Executing a search warrant involves no ques tioning and demands no testimony. See Andresen v. Maryland, 427 U.S. 463, 474 (1976) ("[T]he individual against whom [a] search is directed is not required to aid in the discovery, production, or authentication of incrim inating evidence."). Accordingly, the execution of a search warrant does not implicate the protections of the Speech or Debate Clause. App., infra, 31a (Henderson, J., concurring in the judgment) (execution of a search warrant is not "question[ing]" because it does "not re quire the [target] to do anything") (internal quotation marks omitted); see id. at 30a-31a (distinguishing a civil subpoena, such as that in Brown & Williamson).3

b. Even if a search warrant could implicate the Speech or Debate Clause, this Court has emphasized that the Clause extends beyond "speech or debate in either House * * * only when necessary to prevent indirect impairment of [legislative] deliberations." Gravel, 408 U.S. at 625 (emphasis added; internal quota tion marks omitted). The execution of a search warrant by Executive Branch law enforcement agents seeking non-legislative materials does not impermissibly impair legislative deliberations. While the court of appeals ex pressed concern that "the possibility of compelled dis closure may * * * chill the exchange of views with re spect to legislative activity," App., infra, 13a-14a, the risk of any such chill is remote. A warrant cannot issue except on a showing of probable cause to a neutral judi cial officer that a congressional office contains evidence of crime. The judicial officer is fully empowered (as oc curred in this case) to impose protections on the execu tion of a warrant to ensure that no undue interference in legislative activity occurs. The involvement of the judi ciary through the warrant process therefore protects against circumstances that will unduly chill legitimate legislative conduct.

Any chill that may result from the possibility of warrant-authorized criminal investigations does not rise to the level of "realistic[]" impairment this Court has required for extending the Speech or Debate Clause beyond pure speech or debate in either House. Gravel, 408 U.S. at 618. In fact, this Court rejected a similar argument in the context of Executive privilege: "[W]e cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conver sations will be called for in the context of a criminal prosecution." United States v. Nixon, 418 U.S. 683, 712 (1974); cf. Zurcher v. Stanford Daily, 436 U.S. 547, 565- 566 (1978) (holding that execution of search warrant on newspaper would not unconstitutionally chill exercise of First Amendment rights).

Not even the standards applicable to traditional confidentiality-based privileges, such as the attorney- client privilege, support the court of appeals' conclusion that the Speech or Debate Clause "absolutely" bars even cursory review of legislative-act material by non-prose cution team agents who are enjoined not to reveal any non-responsive or unprivileged material they encounter. App., infra, 14a-15a. In Andresen, for example, this Court upheld a cursory examination of papers during the search of a law office "in order to determine whether they are, in fact, among those papers authorized to be seized." 427 U.S. at 482 n.11. If such incidental review is permissible in the context of a confidentiality-based privilege, it is certainly permissible in the context of a privilege designed to protect public speech or debate.

B. The Court Of Appeals' Decision Upsets The Constitu tional Balance By Effectively Preventing Any Searches Of Congressional Offices

The court of appeals' non-disclosure privilege effec tively would make congressional offices "a sanctuary for crime." Brewster, 408 U.S. at 521 (quoting Williamson v. United States, 207 U.S. 425, 439 (1908)). Such a hold ing would undermine, rather than reinforce, the separa tion of powers. The court of appeals asserted that, un der its holding, "the Congressman's privilege under the Speech or Debate Clause" could be "asserted at the out set of a search in a manner that also protects the inter ests of the Executive in law enforcement." App., infra, 17a. But the court offered no explanation of how that assertion could be made, either constitutionally or prac tically. The court held that, at a minimum, a Member must be able to "assert the privilege with respect to leg islative materials before their compelled disclosure to Executive agents." Id. at 16a (emphasis added). That means that law enforcement agents would have to de pend on the target of a search, perhaps assisted by oth ers, to segregate documents he views as privileged from those he views as unprivileged, with a court then making ex parte privilege determinations, before the govern ment could conduct the search. That procedure ignores separation of powers concerns and practical realities concerning the risk of destruction of evidence, and intro duces intractable practical problems.

To the extent that the court contemplated that non- Executive Branch officials would conduct the search, it overlooked this Court's recognition that executing a search warrant is a quintessentially "executive" func tion. United States v. Grubbs, 547 U.S. 90, 98 (2006) (internal quotation marks omitted); see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327-328 (1979) (a "search par ty [is] essentially a police operation"; magistrate's par ticipation in a search was improper because it blurred the line between the judicial role and the police officer's conduct of "the executive seizure"); Fed. R. Crim. P. 41 (demanding various tasks of "[t]he officer executing the warrant," and defining "officer" as "a government agent * * * engaged in enforcing the criminal laws"); Pet. App. 29a (Henderson, J., concurring in the judgment). To protect the integrity of evidence seized during a search and to conduct the search at all, executing agents-not the target of the search or any non-execu tive official-must exercise "unquestioned command of the situation." Michigan v. Summers, 452 U.S. 692, 702- 703 (1981).

To the extent that the court contemplated that a Member would have an untrammeled opportunity to remove all assertedly privileged materials before Exec utive Branch agents could search, its solution is unwork able. If a Member or his aides were to screen docu ments in the first instance, the evidentiary value of the search would be jeopardized. The Member might add fingerprints to evidence. He might rearrange docu ments, especially when sorting privileged from unprivi leged evidence, and thereby deprive the government of the evidentiary benefit of finding documents where and as they were kept. Those concerns apply even to well- intentioned Members. And an unscrupulous Member- one who has already engaged in public corruption- might attempt to hide incriminating documents, as Rep resentative Jefferson sought to do during an August 2005 search of his Louisiana residence. See C.A. App. 158 (affidavit of FBI agent describing Congressman's "attempt[] to conceal documents"); Indictment ¶¶ 217- 218 (charging Representative Jefferson with obstruction of justice in connection with the search). The court of appeals' decision ignores those practical realities.

Ex ante screening by a Member, followed by ex parte privilege determinations by a court, would also impose wholly impractical burdens on the courts. Because of the volume of legislative materials in a congressional office, the task of segregating legislative from non-legis lative materials in advance of a search would be monu mental-far more burdensome and disruptive than the procedures contemplated by the warrant in this case, under which FBI agents not involved in the investiga tion, and barred from disclosing privileged material, determined which documents were covered by the search warrant, so that only those documents had to be reviewed for privilege. See App., infra, 28a-29a, 32a (Henderson, J., concurring in the judgment).

Timely judicial review of the Member's privilege as sertions concerning all of the documents and computer files in his office would be virtually impossible, in part because ex parte review places significant "burdens * * * upon the district courts," requiring them "to eval uate large evidentiary records without open adversarial guidance." United States v. Zolin, 491 U.S. 554, 571 (1989). Thus, as a district court recently observed, the ex parte review mandated by the decision below imposes "substantial burdens on both the Members and the courts" and "eliminates much of the efficacy of the ad versarial system." Jewish War Veterans of the USA, Inc. v. Gates, 506 F. Supp. 2d 30, 62 (D.D.C. 2007).

The court of appeals asserted that its "Remand Or der illustrates a streamlined approach by narrowing the number of materials the district court may be required to review." App., infra, 17a. In fact, that order required the district court to review every document-more than 18,000 pages-over which Representative Jefferson claimed privilege. Id. at 75a-76a. Approximately a year and a half later, the district court has yet to issue any findings on any of the documents Representative Jeffer son has claimed to be privileged, apparently because of the sheer volume of privilege claims and the difficulty in reviewing such claims without open adversarial guid ance. Thus, nearly a year and a half after the Remand Order, the government has not yet seen any of the docu ments over which Representative Jefferson claims privi lege. This delay exists, and is inherent in the court of appeals' remedy, even if, on review, the district court were to conclude that none of those materials contains legislative acts. Such significant delays seriously ham per criminal investigations, especially with statutes of limitations running. Cf. Flanagan v. United States, 465 U.S. 259, 264 (1984) (explaining that passage of time prejudices criminal prosecutions).

The district court's predicament would have been far worse if Representative Jefferson had been permitted to assert privilege before the non-case agents searched his office for paper documents, as the decision below now requires. Under that approach, the Congressman would have had to review every document in his office for privi lege, and the district court would have had to review every allegedly privileged document in the Congress man's office. In contrast, under the procedures pro posed by the government and specified in the search warrant approved by an Article III judge, the search team narrowed the universe of relevant documents by seizing only the documents that were responsive to the search warrant. And the government's filter team could have further narrowed the number of documents in dis pute by conceding privilege where appropriate, and could have provided "open adversarial guidance" about the remainder. Zolin, 491 U.S. at 571. The court of ap peals' decision effectively prevents otherwise-practica ble searches of congressional offices. It thereby in fringes the constitutional value of accountability of legis lators in judicial proceedings for possible criminal con duct, and undermines the balance struck by the Speech or Debate Clause. Brewster, 408 U.S. at 525.4

C. The Question Presented Warrants Review

Although this case involves the first search of a Capi tol Hill office, App., infra, 21a, the court of appeals' deci sion is not limited to such searches and it casts doubt on a number of investigative techniques used in public cor ruption cases. See id. at 36a-37a (Henderson, J., concur ring in judgment). The decision below warrants review at this time because it imposes a serious impediment to important ongoing public corruption investigations, and it disagrees with a decision of the Third Circuit.

1. The court of appeals' decision applies to the search of any "location where legislative materials were inevitably to be found." App., infra, 15a; see id. at 13a (emphasizing that the search here "must have resulted in the disclosure of legislative materials"); id. at 17a ("The compelled disclosure of legislative materials to FBI agents executing the search warrant was not unin tentional but deliberate-a means to uncover responsive non-privileged materials."). Under that decision, tradi tional searches of Congressmen's district offices in their home States for documents are likely unconstitutional. The decision below may also reach beyond Members' offices to searches of their homes, vehicles, and brief cases in the District of Columbia. See id. at 36a (Hen derson, J., concurring in judgment); cf. id. at 53a ("Car ried to its logical conclusion, [Representative Jeffer son's] argument would require a Member of Congress to be given advance notice of any search of his property, including * * * his home or car, and further that he be allowed to remove any material he deemed to be covered by the legislative privilege prior to a search."). Within the District of Columbia, for example, the United States will no longer search for documents in an office of a Member located in his home because of concerns that such a search could (under the court of appeals' deci sion) taint an investigation.

The court of appeals' decision also potentially jeopar dizes wiretaps and pen registers directed at Members. Officers using techniques designed to minimize the in terception of privileged conversations typically hear privileged communications before determining that the relevant conversation (or portion of the conversation) is privileged. The government does not presently intend to use wiretaps against Members in the District of Co lumbia-the location where relevant communications are most likely to occur. In the District of Columbia, a similar analysis applies to pen registers, which do not overhear conversations, but provide valuable informa tion by recording all of the phone numbers dialed by a telephone, including phone numbers dialed in the course of legislative business as well as in the course of possible criminal activity. Cf. Smith v. Maryland, 442 U.S. 735, 736 n.1 (1979). And the underlying principle of the case has been interpreted by some Members to preclude agents from conducting voluntary interviews with Hill staffers without the Members' consent. While the gov ernment contends that the court of appeals' decision is limited to "compelled disclosure," App., infra, 2a, the decision may presage a more expansive application. Thus, the court of appeals' decision is significantly im pairing public-corruption investigations in the seat of our Nation's government, which are a vital means of protecting the integrity of our government.

In jurisdictions other than the District of Columbia, the court of appeals' decision also deters prosecutors from using previously uncontroversial investigative techniques for fear that those techniques will be held invalid under the rationale of the decision below, and that defendants will then argue that the entire investi gation or prosecution was tainted. Law enforcement agents are thus placed on the horns of a dilemma. They could choose not to pursue potentially important evi dence of public corruption, and thereby risk letting seri ous crimes go unpunished. Or they could pursue the evidence and risk losing an important public corruption case in the event that a court later holds that the investi gation was tainted by a search or wiretap that would have been considered uncontroversial before the court of appeals issued its decision in this case.

Especially because the court of appeals' decision casts such a serious cloud over important, ongoing pub lic-corruption investigations, it warrants this Court's review. Indeed, the investigation underlying this very case has not yet concluded, because the government con tinues to investigate other participants in Representa tive Jefferson's schemes. Thus, the evidence seized in the search at issue here is relevant not only to the prose cution of Representative Jefferson, but also to the ongo ing investigation and potential prosecution of other indi viduals. For that reason, the importance of the question presented is not limited to the government's case against Representative Jefferson and will continue re gardless of whether he is convicted.

2. The need for this Court's review is bolstered by the fact that the decision below is at odds with existing circuit precedent on the scope of the Speech or Debate Clause. Unlike the District of Columbia Circuit, the Third Circuit has held that "the privilege when applied to records or third-party testimony is one of noneviden tiary use, not of non-disclosure." Eilberg, 587 F.2d at 597 (emphasis added); see In re Grand Jury Proceed ings, 563 F.2d 577, 584 (3d Cir. 1977) ("[T]he privilege is one of nonevidentiary use rather than nondisclosure."). At issue in Eilberg was a grand jury subpoena, served on the Clerk of the House, seeking a Member's official telephone records. Eilberg, 587 F.2d at 591-592. The records included both legislative and non-legislative information, but the Member claimed that the records were entirely immune from disclosure under the Speech or Debate Clause. Id. at 596. Just like Representative Jefferson, the Member urged that the Clause "protect[s] legislators from the [E]xecutive [B]ranch harassment entailed in rummaging through partially privileged re cords." Ibid. And, just like Representative Jefferson, the Member argued that the government was not enti tled to view the telephone records until, at the very least, the district court considered the Member's privi lege claims ex parte. Ibid.

Eilberg rejected the Member's contentions because, "[u]nlike privileges such as attorney-client, physician- patient, or priest-penitent, the purpose of which is to prevent disclosure which would tend to inhibit the devel opment of socially desirable confidential relationships, the Speech or Debate privilege is at its core a use privi lege." 587 F.2d at 596 (internal citation omitted). "[T]o the extent that the Speech or Debate Clause creates a [t]estimonial privilege as well as a [u]se immunity, it does so only for the purpose of protecting the legislator * * * from the harassment of hostile questioning. It is not designed to encourage confidences by maintaining secrecy, for the legislative process in a democracy has only a limited toleration for secrecy." Id. at 597. Thus, the court concluded, "[t]he privilege when applied to records or third-party testimony is one of noneviden tiary use, not of non-disclosure." Ibid. For that reason, the court permitted the United States Attorney to retain and review the subpoenaed phone records-including the portions over which the Member claimed privi lege-while the parties litigated the question which re cords were privileged. Ibid.

To be sure, the Third Circuit has not squarely ad dressed the applicability of the Speech or Debate Clause to a search of a congressional office. Nonetheless, the Third Circuit's interpretation of the Clause stands in stark contrast to the District of Columbia Circuit's, as the latter circuit has acknowledged. See Brown & Wil liamson, 62 F.3d at 420 ("We do not share the Third Cir cuit's conviction that democracy's 'limited toleration for secrecy' is inconsistent with an interpretation of the Speech or Debate Clause that would permit Congress to insist on the confidentiality of investigative files."); cf. App., infra, 37a n.12 (Henderson, J., concurring in the judgment). And the Third Circuit's willingness to per mit Executive Branch officials to participate in in cam era proceedings to segregate privileged from non-privi leged materials is precisely what the court of appeals categorically forbade in this case.

The circuit courts' differing interpretations of the scope of the Speech or Debate Clause highlight the need for intervention by this Court. And the fact that the District of Columbia Circuit has improperly curtailed investigative practices permitted elsewhere amplifies the need for review. The District of Columbia is the lo cus of the vast majority of congressional investigations and is a potential locus of evidence in every congressio nal investigation. That fact magnifies the significance of the decision below and underscores its detrimental ef fects. Given the critical importance of corruption inves tigations in maintaining the Nation's confidence in the integrity of the Legislative Branch, and the ability of this Court alone to provide definitive guidance on the proper scope of Speech or Debate guarantees, this Court's review of the decision below is warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

 

GREGORY G. GARRE*
Acting Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DARYL JOSEFFER
Assistant to the Solicitor
General
STEPHAN E. OESTREICHER, JR.
Attorney

 

 

DECEMBER 2007

 

 

 

* The Solicitor General is recused from this case.

1 The court of appeals noted, however, that it was doubtful that the court had jurisdiction to consider, in the circumstances of this case, where no disruption to his office was alleged from lack of original docu ments, Representative Jefferson's claim for a remedy ordering the return of non-privileged materials. App., infra, 23a-24a (citing, inter alia, DiBella v. United States, 369 U.S. 121 (1962)). Representative Jefferson has since moved to suppress those unprivileged documents in his criminal case.

2 The court of appeals found no constitutional violation with respect to the copying of the computer hard drives, however, because no Exe cutive agent had seen the contents of any of the files on those drives. App., infra, 18a. The court explained that its "Remand Order affords the Congressman an opportunity to assert the privilege prior to dis closure of privileged materials [on the hard drives] to the Executive." Ibid.

3 The conclusion that the precisely worded Speech or Debate Clause does not regulate search warrants would not necessarily mean that no constitutional limitation applies to searches directed to Members of Congress. The separation of powers doctrine applies more generally to actions by a branch of government that "disrupt[] the proper balance between the coordinate branches [by] prevent[ing] [a different] [b]ranch from accomplishing its constitutionally assigned functions." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977). The Fourth Amendment also protects against unreasonable searches. Courts are fully capable of protecting against searches or other Execu tive Branch actions that impermissibly interfere with Congress's ability to achieve its legitimate legislative objectives.

4 In the court of appeals, the government argued that the court could reject Representative Jefferson's Speech or Debate claim on the assumption that the Remand Order would remain in place, such that "the narrow issue presented is whether the incidental review of argu ably protected legislative materials during the execution of the search warrant" tainted the seized materials. Gov't C.A. Br. 15; see id. at 35. (The government made that submission in April 2007, in anticipation of prompt completion of the privilege review in the district court, an event that, seven months later, still has not occurred.) But, while arguing that the court need not reach the issue, e.g., id. at 18, the government also argued that the Speech or Debate Clause does not apply to search warrants, id. at 43-45, and that the procedures approved by the court upon issuance of the warrant and afforded by the government after the search removed any constitutional objection, id. at 25-26. The govern ment also advanced as a central contention the proposition that the Speech or Debate Clause does not contain broad protections for confidentiality. Id. at 36-40. The court of appeals reached all of the government's broader arguments and in the process invalidated the search itself (as to paper records) and the filter-team procedures contemplated by the warrant. Thus, the court of appeals' decision has denied the government procedural rights that it enjoyed under the district court's judgment and that would have significantly expedited the privilege-review process.

 

 

 

APPENDIX A

 

UNITED STATES COURT OF APPEALS
. FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

 

 

 

No. 06-3105

UNITED STATES OF AMERICA, APPELLEE

v.

RAYBURN HOUSE OFFICE BUILDING,
ROOM 2113, WASHINGTON, D.C. 20515, APPELLANT

 

Argued: May 15, 2007
Decided: Aug. 3, 2007

Before: GINSBURG, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in the judgment filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge:

This is an appeal from the denial of a motion, filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking the return of all materials seized by the Executive upon executing a search warrant for non-legislative materials in the congressional office of a sitting Member of Congress. The question on appeal is whether the procedures under which the search was conducted were sufficiently protective of the legislative privilege created by the Speech or Debate Clause, Arti cle I, Section 6, Clause 1 of the United States Constitu tion. Our precedent establishes that the testimonial pri vilege under the Clause extends to non-disclosure of written legislative materials. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). Given the Department of Justice's voluntary freeze of its review of the seized materials and the pro cedures mandated on remand by this court in granting the Congressman's motion for emergency relief pending appeal, the imaging and keyword search of the Congress man's computer hard drives and electronic media ex posed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause, but the review of the Congressman's paper files when the search was executed exposed legislative material to the Executive and accordingly violated the Clause. Whether the violation requires, as the Congressman suggests, the return of all seized items, privileged as well as non-privileged, depends upon a determination of which documents are privileged and then, as to the non-privileged documents, a balancing of the separation of powers underlying the Speech or Debate Clause and the Executive's Article II, Section 3 law enforcement interest in the seized materials. The question of whether the seized evidence must be suppressed under the Fourth Amendment is not before us.

We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original ver sions of the non-privileged documents, that remedying the violation also requires the return of the non-privi leged documents. The Congressman has suggested no other reason why return of such documents is required pursuant to Rule 41(g) and, in any event, it is doubtful that the court has jurisdiction to entertain such argu ments following the return of the indictment against him while this appeal was pending.

I.

On May 18, 2006, the Department of Justice filed an application for a search warrant for Room 2113 of the Rayburn House Office Building, the congressional office of Congressman William J. Jefferson. The attached affi davit of Special Agent Timothy R. Thibault of the Fed eral Bureau of Investigation ("FBI") described how the apparent victim of a fraud and bribery scheme who had come forward as a cooperating witness led to an investi gation into bribery of a public official, wire fraud, brib ery of a foreign official, and conspiracy to commit these crimes. The investigation included speaking with the Congressman's staff, one of whom had advised that re cords relevant to the investigation remained in the con gressional office. Based on the investigation, the affiant concluded that there was probable cause to believe that Congressman Jefferson, acting with other targets of the investigation, had sought and in some cases already ac cepted financial backing and or concealed payments of cash or equity interests in business ventures located in the United States, Nigeria, and Ghana in exchange for his undertaking official acts as a Congressman while promoting the business interests of himself and the tar gets. Attachments A and B, respectively, described Room 2113 and the non-legislative evidence to be seized. The affiant asserted that the Executive had exhausted all other reasonable methods to obtain these records in a timely manner.

The warrant affidavit also described "special proce dures" adopted by the Justice Department prosecutors overseeing the investigation. According to the affidavit, these procedures were designed: (1) "to minimize the likelihood that any potentially politically sensitive, non- responsive items in the Office will be seized and provid ed to the [p]rosecution [t]eam," Thibault Aff. ¶ 136, and (2) "to identify information that may fall within the pur view of the Speech or Debate Clause privilege, U.S. Const., art. I, § 6, cl. 1 or any other pertinent privilege," id. Essentially, the procedures called for the FBI ag ents conducting the search to "have no substantive role in the investigation" and upon reviewing and removing materials from Room 2113, not to reveal politically sen sitive or non-responsive items "inadvertently seen . . . during the course of the search." Id. ¶¶ 137-38. The FBI agents were to review and seize paper documents responsive to the warrant, copy all electronic files on the hard drives or other electronic media in the Congress man's office, and then turn over the files for review by a filter team consisting of two Justice Department attor neys and an FBI agent. Id. ¶ 139. The filter team would determine: (1) whether any of the seized documents were not responsive to the search warrant, and return any such documents to the Congressman; and (2) whether any of the seized documents were subject to the Speech or Debate Clause privilege or other privi lege. Materials determined to be privileged or not re sponsive would be returned without dissemination to the prosecution team. Materials determined by the filter team not to be privileged would be turned over to the prosecution team, with copies to the Congressman's at torney within ten business days of the search. Materials determined by the filter team to be potentially privi leged would, absent the Congressman's consent to Exec utive use of a potentially privileged document, be sub mitted to the district court for review, with a log and copy of such documents provided to the Congressman's attorney within 20 business days of the search. The fil ter team would make similar determinations with re spect to the data on the copied computer hard drives, following an initial electronic screening by the FBI's Computer Analysis and Response Team.

The district court found probable cause for issuance of the search warrant and signed it on May 18, 2006, directing the search to occur on or before May 21 and the U.S. Capitol Police to "provide immediate access" to Room 2113. Beginning on Saturday night, May 20, more than a dozen FBI agents spent about 18 hours in Room 2113. The FBI agents reviewed every paper record and copied the hard drives on all of the computers and elec tronic data stored on other media in Room 2113. The FBI agents seized and carried away two boxes of docu ments and copies of the hard drives and electronic data. According to the brief for the Executive, the Office of the Deputy Attorney General directed an immediate freeze on any review of the seized materials. See Appel lee's Br. at 10.

On May 24, 2006, Congressman Jefferson challenged the constitutionality of the search of his congressional office and moved for return of the seized property pur suant to FED. R. CRIM. P. 41(g). He argued, inter alia, that the issuance and execution of the search warrant violated the Speech or Debate Clause and sought an or der enjoining FBI and Justice Department review or inspection of the seized materials. The following day, the President of the United States directed the Attorney General, acting through the Solicitor General, to pre serve and seal the records and to make sure no use was made of the materials and that no one had access to them; this directive would expire on July 9, 2006.

On July 10, 2006, the district court denied the Con gressman's motion for return of the seized materials. Concluding that execution of the warrant "did not impermissibly interfere with Congressman Jefferson's legislative activities," In re Search of the Rayburn House Office Bldg. Room No. 2113 Washington, D.C. 20515, 432 F. Supp. 2d 100, 113 (D.D.C. 2006), the dis trict court noted that the warrant sought only materials that were outside of the "legitimate legislative sphere," id. The district court rejected the Congressman's claim that he had a right to remove documents he deemed privileged before execution of the warrant, reasoning that although "some privileged material was incidentally captured by the search" and was subject to "incidental review," "the preconditions for a properly administered warrant that seeks only unprivileged material that falls outside the sphere of legitimate legislative activity are sufficient to protect against" undue Executive intrusion. Id. at 114. The Justice Department, therefore, could regain custody of the seized materials and resume re view as of July 10, 2006. See id. at 119. On July 11, 2006, Congressman Jefferson filed a notice of appeal and a motion for a stay pending appeal. According to the brief for the Executive, the Attorney General ordered the FBI to regain custody of the seized materials and imposed an immediate freeze on any review until the district court and this court considered the Congress man's request for a stay pending appeal. See Appellee's Br. at 13. The district court denied a stay on July 19, 2006. See In re Search of the Rayburn House Office Bldg. Room No. 2113, Washington, D.C. 20515, 434 F. Supp. 2d 3 (D.D.C. 2006).

This court, upon consideration of the Congressman's emergency motion for a stay pending appeal filed on July 20, 2006, enjoined the United States, acting through the Executive, from resuming its review of the seized materials. See Order of July 25, 2006. Three days later, the court remanded the record to the district court to make findings regarding "which, if any, docu ments (physical or electronic) removed . . . from [the] Congressman['s] . . . office pursuant to a search war rant executed on May 20, 2006, are records of legislative acts." Order of July 28, 2006 ("Remand Order"). The court instructed the district court to: (1) copy and pro vide the copies of all the seized documents to the Con gressman; (2) "using the copies of computer files made by [the Executive], search for the terms listed in the warrant, and provide a list of responsive records to Con gressman Jefferson"; (3) provide the Congressman an opportunity to review the records and, within two days, to submit, ex parte, any claims that specific documents are legislative in nature; and (4) "review in camera any specific documents or records identified as legislative and make findings regarding whether the specific docu ments or records are legislative in nature." Remand Order at 1. In the meantime, the court enjoined the Ex ecutive from reviewing any of the seized documents pen ding further order of this court. Subsequently, the court allowed the Executive to review seized materials that the Congressman "has conceded on remand are not priv ileged under the Speech or Debate Clause." Order of Nov. 14, 2006. The court ordered expedition of this ap peal, id., and oral argument was heard on May 15, 2007.

On June 4, 2007, the grand jury returned a six teen-count indictment against Congressman Jefferson in the Eastern District of Virginia. United States v. Jef ferson, No. 07-0209 (E.D. Va. indictment filed June 4, 2007). The indictment included charges of racketeering, solicitation of (and conspiracy to solicit) bribes, money laundering, wire fraud, and obstruction of justice.1 Trial is scheduled to begin with jury selection in January 2008. This court's jurisdiction of the Congressman's appeal rests on the collateral order doctrine. See United States v. Rostenkowski, 59 F.3d 1291, 1296-1300 (D.C. Cir. 1995). Neither party suggests that the return of the indictment divests this court of jurisdiction or renders this appeal moot or urges that the court not proceed to decide this appeal.2 Cf. In re 3021 6th Ave. N., Billings, MT v. United States, 237 F.3d 1039, 1041 (9th Cir. 2001). We agree, for the Executive retains in its possession seized materials, including complete copies of every computer hard drive in Room 2113, which contain legis lative material.3 See City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000); see also Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, 74 F.3d 1308, 1311 (D.C. Cir.), vacated on other grounds, 519 U.S. 1, 117 S. Ct. 378, 136 L. Ed. 2d 1 (1996). Letting the district court's decision stand until after the Congressman's trial would, if the Con gressman is correct, allow the Executive to review privi leged material in violation of the Speech or Debate Clause.

II.

The Speech or Debate Clause provides that "for any Speech or Debate in either House, [Members of Con gress] shall not be questioned in any other Place." U.S. CONST. art. I, § 6, cl. 1. The version of the Clause adop ted by the Founders closely resembles the language ad opted in the English Bill of Rights of 1689, which came out of the long struggle for governmental supremacy between the English monarchs and the Parliament, dur ing which the criminal and civil law were used to intimi date legislators. By the time of the Constitutional Con vention, the privilege embodied in the Speech or Debate Clause was "recognized as an important protection of the independence and integrity of the legislature," United States v. Johnson, 383 U.S. 169, 178, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966), and was to serve as a pro tection against possible "prosecution by an unfriendly executive and conviction by a hostile judiciary," id. at 179.

In defining the protections afforded by the Clause, the Supreme Court has limited the scope to conduct that is an integral part of "the due functioning of the legisla tive process." United States v. Brewster, 408 U.S. 501, 513, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972). The Con gressman does not dispute that congressional offices are subject to the operation of the Fourth Amendment and thus subject to a search pursuant to a search warrant issued by the federal district court. The Executive ac knowledges, in connection with the execution of a search warrant, that there is a role for a Member of Congress to play in exercising the Member's rights under the Speech or Debate Clause. The parties disagree on pre cisely when that should occur and what effect any viola tion of the Member's Speech or Debate rights should have. The Congressman contends that the exercise of his privilege under the Clause must precede the disclo sure of the contents of his congressional office to agents of the Executive and that any violation of the privilege requires return of all of the seized materials. The Ex ecutive offers that the special procedures described in the warrant affidavit "are more than sufficient to protect Rep[resentative] Jefferson's rights . . . under the Clause," Appellee's Br. at 15-16, and that any violation of the privilege does not deprive the Executive of the right to retain all non-privileged materials within the scope of the search warrant.

The Supreme Court has not spoken to the precise issue at hand. May 20-21, 2006 was the first time a sit ting Member's congressional office has been searched by the Executive. The Court has made clear, however, in the context of a grand jury investigation, that "[t]he Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch." Gravel v. United States, 408 U.S. 606, 616, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972). Although in Gravel the Court held that the Clause embraces a testimonial privilege, id. at 616, to date the Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privi lege. However, this court has.

Beginning with the observation that the prohibition in the Speech or Debate Clause is "deceptively simple," this court held in Brown & Williamson, 62 F.3d at 415, that the Clause includes a non-disclosure privilege, id. at 420. Noting that the purpose of the Speech or Debate Clause is "'to insure that the legislative function the Constitution allocates to Congress may be performed in dependently,' without regard to the distractions of pri vate civil litigation or the periods of criminal prosecu tion," id. at 415 (quoting Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502, 95 S. Ct. 1813, 44 L. Ed. 2d 324 (1975)), the court rejected the view that the testimonial immunity of the Speech or Debate Clause applies only when Members or their aides are personally questioned:

Documentary evidence can certainly be as revealing as oral communications-even if only indirectly when, as here, the documents in question . . . do not detail specific congressional actions. But indica tions as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do-and this is true whether or not the documents are sought for the purpose of inquiring into (or frus trating) legislative conduct or to advance some other goals. . . . We do not share the Third Circuit's con viction that democracy's "limited toleration for sec recy" is inconsistent with an interpretation of the Speech or Debate Clause that would permit Con gress to insist on the confidentiality of investigative files.

Id. at 420. As "[d]iscovery procedures can prove just as intrusive" as naming Members or their staffs as parties to a suit, id. at 418 (italics omitted), the court held that "[a] party is no more entitled to compel congressional testimony-or production of documents-than it is to sue congressmen," id. at 421. Further, the court noted, citing Eastland, 421 U.S. at 509, that when the privilege applies it is absolute. Brown & Williamson, 62 F.3d at 416. As such, "if the touchstone is interference with leg islative activities," then "the nature of the use to which documents will be put-testimonial or evidentiary-is immaterial." Id. at 421. In the same vein, the court in dicated that the degree of disruption caused by probing into legislative acts is immaterial, id. at 419; see also MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 860 (D.C. Cir. 1988).

 

Thus, our opinion in Brown & Williamson makes clear that a key purpose of the privilege is to prevent intrusions in the legislative process and that the legisla tive process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put. See 62 F.3d at 419. The bar on com pelled disclosure is absolute, see Eastland, 421 U.S. at 503, and there is no reason to believe that the bar does not apply in the criminal as well as the civil context. The Executive does not argue otherwise; the search warrant sought only materials not protected by the Speech or Debate Clause. Although Brown & Williamson involved civil litigation and the documents being sought were legislative in nature, the court's discussion of the Speech or Debate Clause was more profound and repeatedly referred to the functioning of the Clause in criminal pro ceedings. See, e.g., Brown & Williamson, 62 F.3d at 416.4

The search of Congressman Jefferson's office must have resulted in the disclosure of legislative materials to agents of the Executive. Indeed, the application accom panying the warrant contemplated it. In order to deter mine whether the documents were responsive to the search warrant, FBI agents had to review all of the pap ers in the Congressman's office, of which some surely related to legislative acts. This compelled disclosure clearly tends to disrupt the legislative process: ex changes between a Member of Congress and the Mem ber's staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause's purpose of protecting against disruption of the legislative process.

The Executive and the district court appear to have proceeded on the premise that the scope of the privilege narrows when a search warrant is at issue. In the dis trict court's view, the Speech or Debate Clause was not implicated by execution of the search warrant because a seizure of documents did not involve a testimonial ele ment. See Rayburn, 432 F. Supp. 2d at 111-12. Both also emphasized that the search warrant sought only non-privileged materials as a basis for distinguishing Brown & Williamson, and looked to the procedural protections afforded by the issuance of a valid search warrant available only in criminal investigations as el iminating any threat to Congress's capacity to function effectively. Our concurring colleague takes much the same approach, failing to distinguish between the law fulness of searching a congressional office pursuant to a search warrant and the lawfulness of the manner in which the search is executed in view of the protections afforded against compelled disclosure of legislative ma terials by the Speech or Debate Clause. The considera tions voiced by our concurring colleague and the district court may demonstrate good faith by the Executive, but they fail to adhere to this court's interpretation of the scope of the testimonial privilege under the Speech or Debate Clause, much less to the Supreme Court's inter pretation of what constitutes core legislative activities, see Brewster, 408 U.S. at 526, and the history of the Clause. While the Executive characterizes what oc curred as the "incidental review of arguably protected legislative materials," Appellee's Br. at 15, it does not deny that compelled review by the Executive occurred, nor that it occurred in a location where legislative mate rials were inevitably to be found, nor that some impair ment of legislative deliberations occurred.

Reliance by the Executive and the district court on Zurcher v. Stanford Daily, 436 U.S. 547, 566-67, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978), is misplaced. There, the Supreme Court rejected the argument that the First Amendment imposed a bar to third-party search war rants absent a prior opportunity by the press to litigate the state's entitlement to the material before it is turned over or seized. However, in Zurcher, the Supreme Court did not address whether a particular search was invalid because it was unconstitutional in its design and implementation; nor did it involve a privilege that abso lutely shields records from non-voluntary disclosure. Contrary to the Executive's understanding on appeal, it is incorrect to suggest that Congressman Jefferson's position is that he was entitled to prior notice of the search warrant before its execution, without regard to the Executive's interests in law enforcement. The Con gressman makes clear in his brief that he is not suggest ing advance notice is required by the Constitution before Executive agents arrive at his office. See Appellant's Br. at 36. Rather he contends legislative and executive interests can be accommodated without such notice, as urged, for example by the Deputy Counsel to the House of Representatives: "We're not contemplating advance notice to the [M]ember to go into his office to search his documents before anyone shows up," but rather that "[t]he Capitol [P]olice would seal the office so that noth ing would go out of that office and then the search would take place with the [M]ember there." Tr. of Hr'g, June 16, 2006, at 35; see Appellant's Br. at 36. Neither does the Congressman maintain that the Speech or Debate Clause protects unprivileged evidence of unprivileged criminal conduct. Nor has the Congressman argued that his assertions of privilege could not be judicially re viewed, only that the warrant procedures in this case were flawed because they afforded him no opportunity to assert the privilege before the Executive scoured his records. See Appellant's Br. at 37.

The special procedures outlined in the warrant affi davit would not have avoided the violation of the Speech or Debate Clause because they denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents. Indeed, the Congress man, his attorney, and counsel for the House of Repre sentatives were denied entry into Room 2113 once the FBI arrived. The special procedures described in the warrant affidavit called for review by FBI agents and the several members of the Justice Department filter team before the Congressman would be afforded an op portunity to identify potentially privileged materials. This procedure is significantly different even from those the Executive has on occasion afforded to other privi leges not protected in the Constitution; for example, in United States v. Search of Law Office, 341 F.3d 404, 407 (5th Cir. 2003), the privilege holder was allowed an op portunity to identify documents protected under the attorney-client privilege at the point the search was completed. Although the Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 558, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), distinguished between the receipt of privi leged information by an agent of the Executive and by the prosecution team in the context of a civil rights claim based on a Sixth Amendment violation, the nature of the considerations presented by a violation of the Speech or Debate Clause is different. If the testimonial privilege under the Clause is absolute and there is no distinction between oral and written materials within the legislative sphere, then the non-disclosure privilege for written materials described in Brown & Williamson, 62 F.3d at 421, is also absolute, and thus admits of no balancing, cf. United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); Moody v. IRS, 654 F.2d 795, 799 (D.C. Cir. 1981). The compelled disclosure of legislative materials to FBI agents executing the search warrant was not unintentional but deliberate-a means to uncov er responsive non-privileged materials.

There would appear to be no reason why the Con gressman's privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement. To the extent the Executive expresses concern about the burdens placed upon the district court and attendant delay during judicial review of seized ma terials, the Remand Order illustrates a streamlined ap proach by narrowing the number of materials the dis trict court may be required to review. The historical record utterly devoid of Executive searches of congres sional offices suggests the imposition of such a burden will be, at most, infrequent. Regardless of whether the accommodation is by initially sealing the office to be searched before the Member is afforded an opportunity to identify potentially privileged legislative materials prior to any review by Executive agents or by some other means, seriatim initial reviews by agents of the Executive of a sitting Member's congressional office are inconsistent with the privilege under the Clause. How that accommodation is to be achieved is best determined by the legislative and executive branches in the first instance.5 Although the court has acknowledged, where it is not a Member who is subject to criminal proceed ings, that the privilege might be less stringently applied when inconsistent with a sovereign interest, see Brown & Williamson, 62 F.3d at 419-20; supra note 4, this ob servation has no bearing here and is relevant, if at all, to the question of remedy for a violation, not the determi nation of whether a violation has occurred.

Accordingly, we hold that a search that allows agents of the Executive to review privileged materials without the Member's consent violates the Clause. The Execu tive's search of the Congressman's paper files therefore violated the Clause, but its copying of computer hard drives and other electronic media is constitutionally per missible because the Remand Order affords the Con gressman an opportunity to assert the privilege prior to disclosure of privileged materials to the Executive; the Executive advises, see Appellee's Br. at 14, 62-63, that no FBI agent or other Executive agent has seen any electronic document that, upon adjudication of the Con gressman's claim of privilege, may be determined by the district court to be privileged legislative material.

III.

The question remains what the appropriate remedy is under Rule 41(g) for a violation of the Speech or De bate Clause. The 1989 Advisory Committee Notes to Rule 41(e)6 state:

No standard is set forth . . . to govern the determi nation of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. . . . If the United States has a need for the property in an investigation or prosecution, its retention of the property general ly is reasonable. But, if the United States' legitimate interests can be satisfied even if the property is re turned, continued retention of the property would become unreasonable.

(emphasis added). Our task is to determine how to re concile the scope of the protection that is afforded to a Member of Congress under the Speech or Debate Clause with the Executive's Article II responsibilities for law enforcement.

Clearly a remedy in this case must show particular respect to the fact that the Speech or Debate Clause "reinforces the separation of powers and protects legis lative independence." Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 8 (D.C. Cir. 2006) (en banc) (collec ting cases). Congressman Jefferson argued in the dis trict court that he has suffered irreparable harm with no adequate remedy available at law because the violation of his constitutional rights cannot be vindicated by an action at law or damages or any other traditional relief.7 On appeal, however, the Congressman makes no claim that the functioning of his office has been impaired by loss of access to the original versions of the seized docu ments; the Remand Order directed that he be given cop ies of all seized documents. Remand Order of July 28, 2007. Perhaps more to the point, however, he contends that complete return of all seized materials is the only remedy that vindicates the separation of powers princi ples underlying the Speech or Debate Clause and serves as an appropriate deterrent to future violations.

Although the search of Congressman Jefferson's pa per files violated the Speech or Debate Clause, his argu ment does not support granting the relief that he seeks, namely the return of all seized documents, including copies, whether privileged or not. Taking his assertions in reverse order, such relief is unnecessary to deter fu ture unconstitutional acts by the Executive. There is no indication that the Executive did not act based on a good faith interpretation of the law, as reflected in the district court's prior approval and later defense of the special procedures set forth in the warrant affidavit. While the Fourth Amendment issue is not before us, the Supreme Court's instruction in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), is relevant to the extent the Congressman invokes deterrence as a rationale for the remedy he seeks under Rule 41(g). In addressing application of the exclusionary rule in the context of the Fourth Amendment, the Supreme Court pointed out in Leon that "[p]articularly when law en forcement officers have acted in objective good faith [on a warrant issued by a neutral magistrate] or their trans gressions have been minor," the possible benefit from exclusion, in terms of future deterrence, is limited, 468 U.S. at 907-08, 104 S. Ct. 3405. Additionally, with re spect to concern about future actions by the Executive, this is the only time in this Nation's history that the Ex ecutive has searched the office of a sitting Member of Congress. Our holding regarding the compelled disclo sure of privileged documents to agents of the Executive during the search makes clear that the special proce dures described in the warrant affidavit are insufficient to protect the privilege under the Speech or Debate Clause. This too should ameliorate concerns about de terrence.

At the same time, the remedy must give effect not only to the separation of powers underlying the Speech or Debate Clause but also to the sovereign's interest under Article II, Section 3 in law enforcement. The fol lowing principles govern our conclusion. The Speech or Debate Clause protects against the compelled disclosure of privileged documents to agents of the Executive, but not the disclosure of non-privileged materials. Its "shield does not extend beyond what is necessary to pre serve the integrity of the legislative process," Brewster, 408 U.S. at 517, and it "does not prohibit inquiry into illegal conduct simply because it has some nexus to leg islative functions," id. at 528. This particular search needlessly disrupted the functioning of the Congress man's office by allowing agents of the Executive to view legislative materials without the Congressman's con sent, even though a search of a congressional office is not prohibited per se. Still, the Congressman makes no claim in his brief, much less any showing, that the func tioning of his office has been disrupted as a result of not having possession of the original versions of the non- privileged seized materials. Most important, to construe the Speech or Debate Clause as providing an absolute privilege against a seizure of non-privileged materials essential to the Executive's enforcement of criminal statutes pursuant to Article II, Section 3 on no more than a generalized claim that the separation of powers demands no less would, as the Supreme Court has ob served, albeit as to a qualified privilege, "upset the con stitutional balance of 'a workable government.'" Nixon, 418 U.S. at 707, 94 S. Ct. 3090 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Jackson, J., concurring)). The Supreme Court has instructed that the Clause is to be applied "in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government." Brewster, 408 U.S. at 508, 92 S. Ct. 2531; see Fields, 459 F.3d at 9.

Applying these principles, we conclude that the Con gressman is entitled, as the district court may in the first instance determine pursuant to the Remand Order, to the return of all materials (including copies) that are privileged legislative materials under the Speech or De bate Clause. Where the Clause applies its protection is absolute. For the reasons stated, absent any claim of disruption of the congressional office by reason of lack of original versions, it is unnecessary to order the return of non-privileged materials as a further remedy for the violation of the Clause. The Congressman has sug gested no other reason why return of the non-privileged documents is required pursuant to Rule 41(g), and, in any event, it is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment. Unlike the Congressman's request for the return of legislative materials protected by the Speech or Debate Clause, the further claim for the return of all non-privileged materials is not independent of the crimi nal prosecution against him, especially if the legality of the search will be a critical issue in the criminal trial. See In re 3021 6th Ave. N., 237 F.3d at 1041 (citing DiBella v. United States, 369 U.S. 121, 131-32, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962)); In re Search of the Premises Known as 6455 South Yosemite, 897 F.2d 1549, 1554-56 (10th Cir. 1990); United States v. Mid-States Exchange, 815 F.2d 1227, 1228 (8th Cir. 1987) (per curiam). We agree with the Ninth Circuit's holding that the 1989 amendment to Rule 41, eliminating the coupling of a motion for the return of property under Rule 41 and a motion to exclude evidence at trial, FED. R. CRIM. P. 41(g), does not affect DiBella's controlling force, which balanced the individual and government interests and their relationship to trial delays or disruptions, 369 U.S. at 124, 126, 129, 82 S. Ct. 654; see, e.g., In re 3021 6th Ave. N., 237 F.3d at 1041. See generally 15B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COO PER, FEDERAL PRACTICE AND PROCEDURE § 3918.4 (2d ed. 1992). Although the Congressman's further request is solely for the return of property, his Rule 41(g) mo tion is "tied to a criminal prosecution in esse against the movant," DiBella, 369 U.S. at 132, 82 S. Ct. 654; it is of no moment that the indictment was filed in another dis trict, id. The fact that the prosecution has commenced "will afford . . . adequate opportunity to challenge the constitutionality of the search of his . . . office," and hence "there is now no danger that the [Executive] might retain [the Congressman's] property indefinitely without any opportunity . . . to assert on appeal his right to possession"; hence there is "no basis upon which to grant piecemeal review of [his further] claim [for non-privileged materials]." United States v. Search Warrant for 405 N. Wabash, Suite 3109, 736 F.2d 1174, 1176 (7th Cir. 1984).

Accordingly, we hold that the Congressman is enti tled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate Clause seized from Rayburn House Office Building Room 2113 on May 20-21, 2006. Further, as contem plated by the warrant affidavit, see Thibault Aff. ¶¶ 137-38, the FBI agents who executed the search war rant shall continue to be barred from disclosing the con tents of any privileged or "politically sensitive and non-responsive items," id. ¶ 138, and they shall not be involved in the pending prosecution or other charges arising from the investigation described in the warrant affidavit other than as regards responsiveness, id.

KAREN LECRAFT HENDERSON, Circuit Judge, con curring in the judgment:

When all of the brush is cleared away, this case pre sents a simple question: can Executive Branch person nel-here, special agents of the Federal Bureau of In vestigation-execute a search warrant directed to the congressional office of a Member of the Congress (Mem ber) without doing violence to the Speech or Debate Clause (Clause) set forth in Article I, Section 6, Clause 1 of the United States Constitution?8 The limited United States Supreme Court precedent regarding the applica bility of the Clause in the criminal context makes one thing clear-the Clause "does not purport to confer a general exemption upon Members of Congress from lia bility or process in criminal cases. Quite the contrary is true." Gravel v. United States, 408 U.S. 606, 626, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972) (emphasis added). It appears that neither the Supreme Court nor any inferior court has addressed the question as I view it and the single holding from our court on which the majority al most exclusively relies to answer the question in the negative decides only the Clause's applicability to a civil subpoena obtained by private parties who sought certain files in the possession of a congressional subcommittee. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995) (Clause barred enforcement of subpoenas duces tecum issued to two members of House Subcommittee on Health and Environment); Maj. Op. at 659-61 (relying on Brown & Williamson because "[t]he Supreme Court has not spoken").9 But Brown & Williamson's brief comments regarding the Clause in the criminal context-which comments importantly ac knowledge the Clause's less categorical scope in that context10-remain dicta no matter how "profound." Maj. Op. at 661. I believe the question can be directly an swered "yes" without resort to dicta or any other indi rect support or theory. Accordingly, while I concur in the judgment which affirms the district court's denial of Representative William J. Jefferson's (Rep. Jefferson) Rule 41(g) motion, I do not agree with the majority's reasoning and distance myself from much of its dicta.

The Supreme Court has made clear that the two ele ments of the privilege-"Speech or Debate" and "ques tion[ing]"-must "be read broadly to effectuate its pur poses." United States v. Johnson, 383 U.S. 169, 180, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966). As our court has noted, the "touchstone" of the Clause "is interference with legislative activities," see Brown & Williamson, 62 F.3d at 421; the Clause is therefore "designed to pro tect Congressmen 'not only from the consequences of litigation's results but also from the burden of defending themselves'" for their legislative actions, Helstoski v. Meanor, 442 U.S. 500, 508, 99 S. Ct. 2445, 61 L. Ed. 2d 30 (1979) (quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967)); see also Johnson, 383 U.S. at 179, 86 S. Ct. 749 (Clause "pro tect[s] [the legislature] against possible prosecution by an unfriendly executive and conviction by a hostile judi ciary"). Still, the "speech or debate privilege was de signed to preserve legislative independence, not suprem acy." United States v. Brewster, 408 U.S. 501, 508, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) (emphasis added).

There is no dispute that the issuance of the search warrant for Rep. Jefferson's congressional office does not violate the Clause. See Maj. Op. at 659. The "Speech or Debate" protected by the Constitution in cludes only "legitimate legislative activity," see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), and "[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a leg islative act," Brewster, 408 U.S. at 526, 92 S. Ct. 2531. Here, the warrant sought only "fruits, instrumentalities and evidence of violations of" various federal bribery and fraud statutes involving Rep. Jefferson,11 see War rant Aff., reprinted in Joint Appendix (JA) at 7; Sealed Appendix (SA) 18-25, which plainly are outside the bounds of protected legislative activities, see Brewster, 408 U.S. at 526, 92 S. Ct. 2531. Having found "probable cause to believe that" Rep. Jefferson's congressional office "contains property constituting evidence of the commission of . . . bribery of a public official, . . . wire fraud[,] . . . bribery of a foreign official . . . [and] conspiracy to commit" these crimes and having issued a search warrant aimed solely at such evidence, see Warrant Aff. at JA 87-88 (internal citations omitted), the district court ensured that the warrant encompassed only unprivileged records. And it is, of course, the judi ciary, not the executive or legislature, that delineates the scope of the privilege. See United States v. Nixon, 418 U.S. 683, 703-04, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (citing Speech or Debate Clause cases to illus trate judicial power to define scope of executive privi lege); cf. In re Search of Rayburn House Ofice Bldg. Room No. 2113 (Rayburn), 432 F. Supp. 2d 100, 116 (D.D.C. 2006) ("A federal judge is not a mere rubber stamp in the warrant process, but rather an independent and neutral official sworn to uphold and defend the Con stitution.").

Notwithstanding the search warrant sought only unprivileged records, Rep. Jefferson's congressional office, as the warrant itself manifests,12 also contained records, paper and electronic, of legislative acts to which the Clause's protection extends. Execution of the war rant necessarily required the FBI agents to separate unprivileged responsive records from privileged records of legislative acts. It is this aspect of the warrant's exe cution that Rep. Jefferson claims violated the Clause because it constituted impermissible "question[ing]" of him. See Appellant's Br. at 13-22; U.S. Const. Art. I, § 6, cl. 1. I disagree.13

The execution of a valid search warrant is an "exer cise of executive power," United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 1501, 164 L. Ed. 2d 195 (2006) (internal quotation omitted), and, as noted, the Supreme Court has made clear that the Clause "does not purport to confer a general exemption upon Members of Con gress" from criminal process, Gravel, 408 U.S. at 626, 92 S. Ct. 2614.14 Nevertheless, my colleagues conclude that the holding in Brown & Williamson, see 62 F.3d at 418-21, establishes that "the disclosure of legislative ma terial" during the execution of a search warrant, Maj. Op. at 660, amounts to prohibited "question[ing]" be cause the Clause embodies a broad "non-disclosure privi lege," Maj. Op. at 660, that safeguards the absolute con fidentiality of legislative records even from criminal pro cess. With respect, I believe they vastly over-read Brown & Williamson. That holding prohibited the pro duction of certain records in a congressional subcommit tee's possession in response to a civil subpoena. See Brown & Williamson, 62 F.3d at 418-19 (citing MIN PECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 857-59 (D.C. Cir. 1988)). It found no functional dif ference between compelling a Member to be "ques tioned" orally and compelling him to produce documents in response to a subpoena. See id. at 420-21.

Yet, as the district court noted, "the difference be tween a warrant and a subpoena is of critical importance here." Rayburn, 432 F. Supp. 2d at 111. Answering a civil subpoena requires the individual subpoenaed to affirmatively act; he either produces the testimony/doc uments sought or challenges the subpoena's validity. In contrast, a search warrant requires that the individual whose property is to be searched do nothing affirmative. Instead, the search must first meet the requirements of the Fourth Amendment via the prior approval of "a neu tral and detached magistrate," Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948), and, upon that official's finding of probable cause, the warrant "authorizes Government officers to seize evidence without requiring enforcement through the courts," United States v. Miller, 425 U.S. 435, 446 n.8, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). The property owner is not required to respond either orally or by physically producing the property, including records. Cf. Johnson v. United States, 228 U.S. 457, 458, 33 S. Ct. 572, 57 L. Ed. 919 (1913) (under Fifth Amendment "[a] party is privileged from producing the evidence, but not from its production"). The FBI agents' execution of the warrant on Rep. Jefferson's congressional office did not require the latter to do anything and accordingly falls far short of the "question[ing]" the court in Brown & Williamson found was required of a Member in re sponse to a civil subpoena.

Moreover, as the majority recognizes, see Maj. Op. at 660, in Brown & Williamson we relied heavily on the Clause's purpose-shielding the legislative process from disruption-in reading the Clause's prohibition of "ques tion[ing]" broadly to protect the "confidentiality," see Brown & Williamson, 62 F.3d at 417-21, of records from the reach of a civil subpoena. Noting that the Speech or Debate "privilege is not designed to protect the reputa tions of congressmen but rather the functioning of Con gress," id. at 419, the court concluded that document production threatened to distract the two Members from their legislative duties, see id. at 418 (quoting MINPECO, 844 F.2d at 859). We declared that "[d]oc umentary evidence can certainly be as revealing as oral communications," providing "clues as to what Congress is doing, or might be about to do," id. at 420, and thereby potentially defeating the Clause's purpose to "insulate Members of Congress from distractions that 'divert their time, energy, and attention from their legis lative tasks,'" id. at 421 (quoting MINPECO, 844 F.2d at 859 (quoting Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503, 95 S. Ct. 1813, 44 L. Ed. 2d 324 (1975))). Given this purpose, we concluded that the Clause "per mit[s] Congress to insist on the confidentiality of investi gative files" and therefore barred enforcement of the subpoena. Id. at 420.

Brown & Williamson's non-disclosure rule, however, does not extend to criminal process. Although the pres ence of FBI agents executing a search warrant in a Mem ber's office necessarily disrupts his routine, the alterna tive procedure proposed by Rep. Jefferson-sealing the office and permitting him to first label his records (pa per and electronic) as privileged and unprivileged- would no doubt take much more of his time. Moreover, the FBI agents responsible for the search of Rep. Jeffer son's congressional office went to great lengths to mini mize disruption15 by, inter alia, executing the warrant when the Congress was not meeting, imaging computer hard drives rather than searching the computers, using specific search terms for both paper and electronic re cords and, most important, creating Filter Teams-one for paper records and one for electronic records-and ensuring subsequent in camera judicial review to mini mize exposure to privileged records. See Warrant Aff. at JA 79-87. The Filter Teams consisted of FBI agents with no prior "role or connection to the investigation" of Rep. Jefferson and whose "roles in the investigation [were] confined to . . . review[ing] the . . . records seized from the Office to validate that they are respon sive to the list" contained in the warrant. Id. at 81 (de scribing filtering procedures for paper records); id. at 84-85 (electronic records). By creating the Filter Teams and "[b]y requiring judicial approval before any argu ably privileged documents could be shared with the prosecution team, the search procedures as a whole eliminated any realistic possibility that evidence of Rep. Jefferson's legislative acts would be used against him." Appellee's Br. at 26.

Disruption aside, it is well settled that a Member is subject to criminal prosecution and process. See Brewster, 408 U.S. at 516, 92 S. Ct. 2531 (Clause's "pur pose [is not] to make Members of Congress super-citi zens, immune from criminal responsibility"); Gravel, 408 U.S. at 626, 92 S. Ct. 2614.16 The core activity protected by the Clause-speech in either chamber of the Con gress-is a public act. In essence, therefore, what the Clause promotes is the Member's ability to be open in debate-free from interference or restriction-rather than any secrecy right. That candor is the animating purpose of the Clause is plain from the historical roots of the privilege. In drafting the Speech or Debate Clause, the Framers drew upon English history and the "long struggle for parliamentary supremacy" against "Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators" from publicly oppos ing the Crown. Johnson, 383 U.S. at 178, 86 S. Ct. 749; see also Tenney, 341 U.S. at 372, 71 S. Ct. 783 ("The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceed ings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.").

And while it is true that, once it attaches, the Clause "is an absolute bar to interference" with legislators, Eastland, 421 U.S. at 503, 95 S. Ct. 1813 (citing Doe v. McMillan, 412 U.S. 306, 314, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973)), recognizing that the privilege is absolute once it attaches begs the question whether the Clause attaches to begin with.17 Significantly, in Brown & Wil liamson we expressly recognized that the Clause's "tes timonial privilege might be less stringently applied when inconsistent with a sovereign interest," such as the conduct of criminal proceedings. 62 F.3d at 419-20 (dis tinguishing Gravel's criminal context from civil sub poena). My colleagues qualify Brown & Williamson's reference to Gravel, noting "it [was] not a Member who [was] subject to criminal proceedings" or process in Gravel. Maj. Op. at 663. Yet, to the extent the majority reads Brown & Williamson to limit Gravel to process served on a congressional aide during a criminal investi gation of a third party, that reading mischaracterizes both Brown & Williamson and Gravel. Gravel's holding that the Clause does not "immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes" is replete with observations that the Clause "provides no protection for criminal conduct . . . performed at the direction of the [Member] . . . or done without his knowledge" by an aide. Gravel, 408 U.S. at 622, 92 S. Ct. 2614. Gravel makes unmistakably clear that a Member-not just a staffer-is subject to criminal liability and process, see, e.g., Gravel, 408 U.S. at 626, 92 S. Ct. 2614 (Clause "does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts" (emphasis added)), so that Brown & Williamson's refer ence to "Gravel's sensitivities to the existence of crimi nal proceedings against persons other than Members of Congress" does no more than describe the Gravel facts, Brown & Williamson, 62 F.3d at 419. Indeed, Gravel "refus[ed] to distinguish between Senator and aide in applying the Speech or Debate Clause," Gravel, 408 U.S. at 622 (emphasis added), finding instead the exis tence of criminal proceedings dispositive, id. at 626. As Gravel noted, his aide's privilege derives from the Mem ber's. Id. at 616-17 (describing aide as Member's "alter ego[]"). Because Gravel stresses the significance of criminal proceedings, rather than their target, and be cause his aide can invoke the Clause only if the Member can do so, the majority is wrong in maintaining that Gravel's language as construed in Brown & Williamson is limited to "third-party" crime.18

Moreover, as the government points out, to conclude that the Clause's shield protects against any Executive Branch exposure to records of legislative acts would jeo pardize law enforcement tools "that have never been considered problematic." Appellee's Br. at 37; see also Rayburn, 432 F. Supp. 2d at 110 ("Carried to its logical conclusion, this argument would require a Mem ber . . . to be given advance notice of any search of his property, including property outside of his congressional office, such as his home or car, and further that he be allowed to remove any material he deemed to be covered by the legislative privilege prior to a search."). If Exec utive Branch exposure alone violated the privilege, "agents . . . could not conduct a voluntary interview with a congressional staffer who wished to report crimi nal conduct by a Member or staffer, because of the pos sibility . . . that the staffer would discuss legislative acts in . . . describing the unprivileged, criminal con duct." Appellee's Br. at 38. Such a rule would also "presumably apply to surveillance of a Member or staffer who might discuss legislative matters with an other Member or staffer." Id. Furthermore, "[d]epriv ing the Executive of the power to investigate and prose cute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence." Brewster, 408 U.S. at 525 (emphasis added); see id. at 524-25 (reasoning that "financial abuses by way of bribes, perhaps even more than Execu tive power, would gravely undermine legislative integ rity and defeat the right of the public to honest repre sentation"). On the other hand, limiting the law enforce ment tools that may be used to investigate Members does undermine the "legitimate needs of the judicial pro cess," specifically, the "primary constitutional duty of the Judicial Branch to do justice in criminal pro- secutions." Nixon, 418 U.S. at 707. Recognizing the strength of these constitutional interests, the Supreme Court limited the scope of executive privilege-which is unquestionably a confidentiality rule-by permitting in camera judicial review of executive records to meet "[t]he need to develop all relevant facts" in a criminal prosecution. Id. at 709. The majority, in barring Exec utive Branch execution of a search warrant-and, by extension, other common investigatory tools-based on mere exposure to privileged records, checks the Judicial Branch as well. Cf. Brewster, 408 U.S. at 508 ("speech or debate privilege was designed to preserve legislative independence, not supremacy") (emphasis added).19

In sum, I believe the Executive Branch's execution of a search warrant on a congressional office-with its un avoidable but minimal exposure to records of legislative acts-does not constitute "question[ing]" within the meaning of the Speech or Debate Clause. On this read ing of the Clause, Rep. Jefferson remains subject to the same criminal process that applies to his constituents. See Gravel, 408 U.S. at 626. As "[t]he laws of this coun try allow no place or employment as a sanctuary for crime," Williamson v. United States, 207 U.S. 425, 439, 28 S. Ct. 163, 52 L. Ed. 278 (1908) (quoting King v. Willkes, 2 Wils. 151 (1763)), I would conclude that the Speech or Debate Clause does not bar the Executive Branch's execution of a search warrant on a congressional office and, accordingly, deny Rep. Jefferson's Rule 41(g) motion.20

1 The indictment charged: Count 1, Conspiracy to Solicit Bribes by a Public Official, Deprive Citizens of Honest Services by Wire Fraud, and Violate the Foreign Corrupt Practices Act, 18 U.S.C. § 371; Count 2, Conspiracy to Solicit Bribes by a Public Official, Deprive Citizens of Honest Services by Wire Fraud, id. § 371; Counts 3 & 4, Solicitation of Bribes by a Public Official, id. § 201(b)(2)(A); Counts 5 to 10, Scheme to Deprive Citizens of Honest Services by Wire Fraud, id. §§ 1343 and 1346; Count 11, Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-2(a); Counts 12-14, Money Laundering, 18 U.S.C. § 1957; Count 15, Obstruc tion of Justice, 18 U.S.C. § 1512(c)(1); Count 16, Racketeer Influenced Corrupt Organization, Pattern of Racketeering Activity (RICO), id. § 1962(c).

2 See Letter from Roy W. McLeese III, Assistant United States At torney, to Mark J. Langer, Clerk (June 7, 2007); Letter from Robert P. Trout, Esquire, to Mark J. Langer, Clerk (June 11, 2007).

3 Letter from Robert P. Trout, supra note 2.

4 The court also acknowledged that the Supreme Court's "sensitivi ties" in Gravel, 408 U.S. at 614, 92 S. Ct. 2614, "to the existence of cri minal proceedings against persons other than Members of Congress at least suggest that the testimonial privilege might be less stringently applied when inconsistent with a sovereign interest." Brown & Williamson, 62 F.3d at 419-20. As we note below, this possibility is not applicable to the present case.

 

5 See Amicus Br. of Hon. Abner J. Mikva at 18; Amicus Br. of Scott Palmer, Elliot S. Berke, and Reid Stuntz, and Philip Kiko (former senior congressional staffers) at 26. Compare Amicus Br. of Thomas S. Foley, Newt Gingrich and Robert H. Michel (former Speakers of the U.S. House of Representatives) at 27-30 (suggesting specific alternative procedures for search of congressional offices); Amicus Br. of Stanley M. Brand et al. (former counsel to the U.S. House of Representatives and the Senate and scholars) at 28-29 (same).

6 As a result of the 2002 Amendments, Rule 41(e) now appears with minor stylistic changes as Rule 41(g). United States v. Albinson, 356 F.3d 278, 279 n.1 (3d Cir. 2004).

7 See In re Search of Law Office, 341 F.3d at 414 & n.49 (holding that district court must find "at the very least, a substantial showing of irreparable harm" in order to suppress seized evidence under Rule 41(e), citing G.M. Leasing Corp. v. United States, 429 U.S. 338, 359-60, 97 S. Ct. 619, 50 L. Ed. 2d 530 (1977)); Ramsden v. United States, 2 F.3d 322, 325 (9th Cir. 1993) ("agree[ing] with the Fifth, Eighth, and Tenth Circuits that a district court must determine whether a movant will suffer irreparable injury when considering whether to reach the merits of a preindictment Rule 41(e) motion").

8 The Clause provides that "for any Speech or Debate in either House" "[t]he Senators and Representatives" "shall not be questioned in any other Place." U.S. Const. Art. I, § 6, cl. 1 (emphases added).

9 Contrary to the majority's assertion that "[t]he Executive does not argue" that the Clause's "bar on compelled disclosure" "does not apply in the criminal as well as the civil context," Maj. Op. at 660, the govern ment expressly argues that "[t]he execution of a search warrant . . . is far removed from the core concerns animating the Clause," Appel lee's Br. at 44, and therefore "the protections of the Clause . . . cannot extend to precluding search warrants," id. at 45. With respect to our precedent, moreover, the government asserts that "Brown & William son itself distinguished between civil subpoenas and criminal proceed ings, and limited its holding to the former." Id. at 47. Finally, the gov ernment repeatedly emphasizes the consequences for law enforcement if a non-disclosure rule is recognized in the criminal context. See id. at 37-38.

10 See infra pp. 659-60.

11 They include 18 U.S.C. § 201 (bribery of public official), 18 U.S.C. §§ 1343, 1346 and 1349 (wire fraud and deprivation of honest services), 15 U.S.C. §§ 78dd-1 et seq. (bribery of foreign official) and 18 U.S.C. § 371 (conspiracy to commit bribery, wire fraud and bribery of foreign official). See Warrant Aff. at JA 7.

12 The warrant includes "special procedures in order to minimize the likelihood that any potentially politically sensitive, non-responsive items in the Office will be seized" by "identify[ing] information that may fall within the purview of the Speech or Debate Clause . . . or any other pertinent privilege." Warrant Aff. at JA 79; see also id. at JA 80-87 (directing search team to seize only records responsive to warrant and to provide potentially privileged records to Rep. Jefferson and to dis trict court to determine privilege vel non); Search Warrant (May 21, 2006), reprinted in JA at 3 (incorporating Warrant Affidavit by reference).

13 The majority is incorrect in suggesting that I "fail[ ] to distinguish between the lawfulness of searching a congressional office pursuant to a search warrant and the lawfulness of the manner in which the search is executed." Maj. Op. at 661. The distinction is what these fourteen pages discuss. The warrant was lawfully issued because it does not seek evidence of "[a] legislative act . . . generally done in Congress in relation to the business before it," United States v. Brewster, 408 U.S. 501, 512, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972), but rather evidence of crimes, see supra pp. 655-56. Unlike the majority, how- ever, I believe that neither the Supreme Court nor Brown & William son holds that the Clause precludes Executive Branch execution of a search warrant. See infra pp. 657-61.Document2zzSDUNumber6åãfà Rep. Jefferson places considerable emphasis on the fact that "the executive branch executed a search warrant on the legislative office of a sitting Member of Congress for the first time in the history of the United States." Appellant's Br. at 1. That does not mean that the Executive Branch is without power to execute such a warrant; it just as likely indicates that never before has the Executive Branch found its use necessary. Indeed, this unique moment in our nation's history is largely of the Representative's own making. For months, the govern ment repeatedly tried and failed-due in part to Rep. Jefferson's invocation of his Fifth Amendment right-to obtain records in his con gressional office via a series of subpoena duces tecum. See SA at 54-74. Only after failing to obtain the records through investigative means within Rep. Jefferson's ability to control did the government turn to a search warrant, which minimizes Rep. Jefferson's role-and his Fifth Amendment right. Moreover, Rep. Jefferson's proposed method of warrant execution-first sealing his office and allowing him to separate privileged from non-privileged records-effectively eliminates the distinction between a search warrant and a subpoena. His proposal would resurrect his Fifth Amendment right because presumably he would respond as he did to the subpoena duces tecum. See infra pp. 657-58.åÆ<"ç"ç\p:body-appendx åã.åXÅã(ÃÃ<çTç

14 Rep. Jefferson places considerable emphasis on the fact that "the executive branch executed a search warrant on the legislative office of a sitting Member of Congress for the first time in the history of the United States." Appellant's Br. at 1. That does not mean that the Executive Branch is without power to execute such a warrant; it just as likely indicates that never before has the Executive Branch found its use necessary. Indeed, this unique moment in our nation's history is largely of the Representative's own making. For months, the govern ment repeatedly tried and failed-due in part to Rep. Jefferson's invocation of his Fifth Amendment right-to obtain records in his con gressional office via a series of subpoena duces tecum. See SA at 54-74. Only after failing to obtain the records through investigative means within Rep. Jefferson's ability to control did the government turn to a search warrant, which minimizes Rep. Jefferson's role-and his Fifth Amendment right. Moreover, Rep. Jefferson's proposed method of warrant execution-first sealing his office and allowing him to separate privileged from non-privileged records-effectively eliminates the distinction between a search warrant and a subpoena. His proposal would resurrect his Fifth Amendment right because presumably he would respond as he did to the subpoena duces tecum. See infra pp. 657-58.

15 "[T]he physical search of the Office [was] conducted by Special Agents . . . [with] no substantive role in the investigation" of Rep. Jefferson. Warrant Aff. at JA 80. These "'non-case agents'" reviewed the records in Rep. Jefferson's office only "to determine if they [were] responsive to the list of items" in the warrant, thereafter "deliver[in] the seized . . . records to" the Filter Teams. Id.

16 Cf. U.S. Const. Art. I, § 6, cl. 1: "The Senators and Representa tives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same . . . ." (emphasis added).

17 In concluding that "there is no reason to believe that the [non disclosure rule] does not apply in the criminal as well as the civil con text," Maj. Op. at 660, my colleagues first acknowledge that "Brown & Williamson involved civil litigation," id. at 660. Nonetheless they believe Brown & Williamson's discussion of the Clause was "more profound," applying equally in the criminal context merely because it "repeatedly referred to the functioning of the Clause in criminal pro ceedings." Id. Likewise, my colleagues' notion that Brown & William son applies to criminal matters because the Clause's "bar on compelled disclosure is absolute," id. at 660, again begs the question whether Brown & Williamson's non-disclosure rule applies to criminal matters at all.

18 Unlike the Brown & Williamson dicta, Gravel's discussion of the Clause's applicability to Members should direct our analysis. See United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006) ("'carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative'" (quoting Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003))).

19 Again in dicta, Brown & Williamson rejected the Third Circuit's holding in In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978), that the Clause merely prohibits evidentiary use of records of legisla tive acts but not their disclosure, concluding instead that the interest in protecting the functioning of the legislature may permit the Congress "to insist on the confidentiality of investigative files," Brown & Wil liamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). And again the criminal context distinguishes Brown & Williamson's dicta from this case. For example, in Brewster, a case involving the criminal prosecution of a Member, the Supreme Court described the violation of the Clause that occurred in United States v. Johnson, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966)-another criminal case-as arising from "the use of evidence" of a legislative act to support the indictment. Brewster, 408 U.S. at 510, 92 S. Ct. 2531 (emphasis added). According to Brewster, "a Member of Congress may be prosecuted under a criminal statute provided that the Govern ment's case does not rely on legislative acts or the motivation for legis lative acts." Id. at 512, 92 S. Ct. 2531. Thus, in the criminal context the Supreme Court has indicated that it is the Executive Branch's eviden tiary use of legislative acts, rather than its exposure to that evidence, that violates the Clause.

APPENDIX B

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

No. 06-0231 M-01

IN RE SEARCH OF THE RAYBURN
HOUSE OFFICE BUILDING ROOM NUMBER 2113
WASHINGTON, D.C. 20515

July 10, 2006

MEMORANDUM OPINION

 

HOGAN, Chief Judge.

"All laws should be made to operate as much on the law makers as upon the people; . . . Whenever it is necessary to exempt any part of the government from sharing in these common burthens, that necessity ought not only to be palpable, but should on no account be ex ceeded." 2 Founders' Constitution 331 (Philip B. Kur land & Ralph Lerner eds., 1987) (James Madison, The Militia Bill, House of Representatives (Dec. 16, 1790)). Pending before the Court is Congressman William J. Jefferson's Motion for Return of Property and Emer gency Motion for Interim Relief, in which he contends that the execution of a search warrant on his congressio nal office was unlawful in violation of the Constitution's Speech or Debate Clause, separation of powers princi ple, and Fourth Amendment.21 Having carefully consid ered the submissions of Congressman Jefferson, the Bipartisan Legal Advisory Group of the Unites States House of Representatives as amicus curiae, and the Government, the Court will deny the motion.22

I. BACKGROUND23

Over the past year, the Federal Bureau of Investiga tion ("FBI") has been conducting an investigation into whether Congressman William J. Jefferson and other individuals bribed or conspired to bribe a public official, committed or conspired to commit wire fraud, or bribed or conspired to bribe a foreign official, in violation of federal criminal statutes. The investigation centers around allegations that Congressman Jefferson used his position in Congress to promote the sale of telecommu nications equipment and services offered by iGate-a Louisiana-based communications firm-to Nigeria, Gha na, and possibly other African nations, in return for pay ments of stock and cash. As of result of the Govern ment's investigation into the scheme, one of Congress man Jefferson's former staffers pleaded guilty to brib ing and conspiring to bribe Congressman Jefferson, and was sentenced to eight years of imprisonment. The President and CEO of iGate also pleaded guilty to brib ing and conspiring to bribe Congressman Jefferson.

On Thursday, May 18, 2006, the Government filed with this Court an application and affidavit for a warrant to search Congressman Jefferson's congressional office for paper documents and computer files related to the alleged bribery scheme and other fraudulent transac tions. According to Congressman Jefferson and The Bipartisan Legal Advisory Group, the execution of a search warrant upon the office of a sitting Congressman is apparently without historical precedent since the adoption of the Constitution more than 200 years ago. The eighty-three-page affidavit laid out the evidence the Government had obtained over the course of the investi gation. The application described in detail the paper documents to be seized and the precise search terms to be used in examining the computer files. The search warrant sought no legitimate legislative material that would be considered privileged under the Speech or De bate Clause.

The application also set forth a set of "special search procedures" to be used in an effort to "minimize the like lihood that any potentially politically sensitive, nonre sponsive items" would be disclosed, and also to prevent investigators and members of the Prosecution Team from obtaining documents or files "that may fall within the purview of the Speech or Debate Clause . . . or any other pertinent privilege." Aff. ¶ 136. These procedures involved the designation of a Filter Team, which was composed of two Department of Justice attorneys who were not on the Prosecution Team and an FBI agent who had no role in the investigation or prosecution of the case.

For paper documents, the Filter Team would review the documents seized to determine first whether each document was responsive, and second whether it fell within the purview of the Speech or Debate Clause or any other privilege. Any documents found to be non-responsive would be returned to counsel for Con gressman Jefferson. As to the potentially privileged documents, a log and copies thereof would be provided to Congressman Jefferson's counsel within twenty days of the search. The Filter Team would then submit the documents to the Court for a final determination of priv ilege. Copies of documents that were found to be re sponsive and unprivileged would be provided to the Prosecution Team and to Congressman Jefferson's coun sel within ten days of the search.

As to computer files, another designated Filter Team (made up of certified FBI computer examiners who had no role in the investigation or prosecution of the case) would perform the search of the computers, subject to the terms laid out in the warrant application. Again, the Filter Team would screen out non-responsive and poten tially privileged files in the same manner as was to be done with the paper documents.

Having found that the application and affidavit estab lished probable cause to believe that evidence of a crime would be found in Congressman Jefferson's congres- sional office, the Court granted the Government's appli cation, issued the warrant, and ordered that the search be conducted on or before Sunday, May 21, 2006. On Saturday, May 20, 2006, federal agents executed the warrant. During the search, the agents excluded both Congressman Jefferson's counsel and counsel for the U.S. House of Representatives. The agents ultimately seized copies of the hard drives of each of the office's computers and two boxes of paper records.

On Wednesday, May 24, 2006, Congressman Jeffer son filed the instant motion for return of the seized ma terial under Rule 41 of the Federal Rules of Criminal Procedure. On June 7, 2006, the Bipartisan Legal Advi sory Group ("amicus"), as amicus curiae, filed a brief in support of the Congressman's motion. The Government opposed the motion. On June 16, 2006, a hearing was held at which the Court heard oral argument on the mo tion.

II. ANALYSIS

Congressman Jefferson moves for return of the prop erty seized during the execution of the search warrant on his congressional office under Rule 41 of the Federal Rules of Criminal Procedure, arguing that the search was unconstitutional as it violated the Speech or Debate Clause, the separation of powers principle, and the Fourth Amendment.

A. Rule 41

The Fourth Amendment shields citizens from unrea sonable searches and seizures. Rule 41 of the Federal Rules of Criminal Procedure "implements the Fourth Amendment by requiring that an impartial magistrate determine from an affidavit showing probable cause whether information possessed by law-enforcement offi cers justifies the issuance of a search warrant." Jones v. United States, 357 U.S. 493, 498, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958). To be valid, a search requires "a prior showing of probable cause, the warrant authoriz ing [the search] must particularly describe the place to be searched, and the person or things to be seized, and . . . it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed." United States v. White, 401 U.S. 745, 758, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971) (in ternal quotation marks omitted). Here, neither Con gressman Jefferson nor amicus contend that the search warrant issued here failed to meet any of those require ments.

Congressman Jefferson and amicus argue that the search was nonetheless unlawful because the manner in which it was executed violated the Constitution. The Supreme Court has made clear that reasonableness is the "overriding test of compliance with the Fourth Amendment." Zurcher v. Stanford Daily, 436 U.S. 547, 559, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978). For it is not the case that "searches, however or whenever executed, may never be unreasonable if supported by a warrant issued on probable cause and properly identifying the place to be searched and the property to be seized." Id. at 559-60, 98 S. Ct. 1970; accord United States v. Koyomejian, 970 F.2d 536, 550 (9th Cir. 1992) (Kozinski, J., concurring) ("Reasonableness is an independent re quirement of the Fourth Amendment, over and above the Warrant Clause requirements of probable cause and particularity."); United States v. Torres, 751 F.2d 875, 883 (7th Cir. 1984) ("[A] search could be unreasonable, though conducted pursuant to an otherwise valid war rant, by intruding on personal privacy to an extent dis proportionate to the likely benefits from obtaining fuller compliance with the law."). "[T]here can be no ready test for determining reasonableness other than by bal ancing the need to search against the invasion which the search entails." Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 536-37, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Therefore, while the issu ance of the search warrant was valid, the search of Con gressman Jefferson's office may still have been unlawful if it was an otherwise unreasonable invasion.

Rule 41(g) allows an owner to seek return of his property that has been unlawfully seized by the govern ment. The rule provides in relevant part:

A person aggrieved by an unlawful search and sei zure of property . . . may move for the property's return. . . . The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the prop erty to the movant, but may impose reasonable con ditions to protect access to the property and its use in later proceedings.

Fed. R. Crim. P. 41(g).

Actions seeking the return of property are governed by equitable principles. Industrias Cardoen, LTDA. v. United States, 983 F.2d 49, 51 (5th Cir. 1993). Whether to exercise its jurisdiction to order the government to return the property is soundly within the discretion of the trial court. Id. Here, the Government urges the Court not to exercise its equitable jurisdiction to decide the Motion for Return of Property at this time.

Generally, where a grand jury investigation has com menced, a decision on a Rule 41(g) motion should be de ferred until after an indictment has been issued, in the absence of irreparable harm. See, e.g., United States v. Douleh, 220 F.R.D. 391, 397 (W.D.N.Y. 2003).24 Here, Congressman Jefferson submits that he has suffered irreparable harm, with no adequate remedy at law, be cause the violation of his constitutional rights cannot be vindicated by an action for damages or any other tradi tional legal relief. Reply Mem. Of Congressman Jeffer son in Supp. of Mot. For Return of Property ("Reply") 21. While Congressman Jefferson overlooks the sure availability of a motion to suppress the evidence seized during the search should the Government's investigation result in his indictment, the Court recognizes that ["t]he unprecedented search of Congressman Jefferson's office has raised questions of serious constitutional magnitude that directly implicate the fundamental workings of the federal government." Reply 19. The Court agrees that the interests of justice demand that these issues be ad dressed now. Cf. Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S. Ct. 2445, 61 L. Ed. 2d 30 (1979) (denial of motion to dismiss indictment may be immediately ap pealed when based on the Speech or Debate Clause be cause there is no other way to provide the full protec tions of the privilege).

B. Constitutionality of the Search

Congressman Jefferson contends that the execution of the search warrant on his congressional office violated the absolute privilege and immunity that Members of Congress enjoy under the Speech or Debate Clause of the Constitution and the separation of powers principle. Further, according to Congressman Jefferson, the search was unreasonable in violation of the Fourth Amendment because his counsel was excluded from the search, and because the search warrant affidavit con tained the flawed premise that the Government had ex hausted all other reasonable methods of obtaining the evidence sought.

1. Speech or Debate Clause

Congressman Jefferson first argues that the search of his congressional office was an unconstitutional viola tion of his legislative privilege under the Speech or De bate Clause. Article I, Section 6, Clause 1 of the Consti tution provides in relevant part:

The Senators and Representatives . . . shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Atten dance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

This language, known as the Speech or Debate Clause, was approved at the Constitutional Convention without discussion and without opposition. See United States v. Johnson, 383 U.S. 169, 177, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966) (citing V Elliot's Debates 406 (1836 ed.); II Records of the Federal Convention 246 (Farrand ed. 1911)). The language was derived from Article V of the Articles of Confederation: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress," which in turn was taken from the English Bill of Rights of 1689: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." Id. at 177-78, 86 S. Ct. 749 (citing 1 W. & M., Sess. 2, c. 2).

The language in the English Bill of Rights reflected the culmination of a history of conflict between the Com mons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Id. at 178, 86 S. Ct. 749. The privilege was designed as an im portant protection of the independence and integrity of the legislature. Id. "The legislative privilege, protect ing against possible prosecution by an unfriendly execu tive and conviction by a hostile judiciary, is one manifes tation of the 'practical security' for ensuring the inde pendence of the legislature." Id. at 179, 86 S. Ct. 749 (quoting The Federalist No. 48 (James Madison) (J. Cooke ed., 1961)).

While the Speech or Debate Clause has English roots, it must be interpreted in light of the American constitutional scheme of government. Brewster, 408 U.S. at 508, 92 S. Ct. 2531. In the American governmen tal structure, the clause serves the additional purpose of reinforcing the separation of powers designed by the Founders. Johnson, 383 U.S. at 178, 86 S. Ct. 749. Im portantly, as Chief Justice Burger observed, it must be remembered that our system of government differs from the English system in that unlike their Parliament, our Congress is not the supreme authority but a coordinate branch. See United States v. Brewster, 408 U.S. 501, 508, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972). "Our task, therefore, is to apply the Clause in such a way as to in sure the independence of the legislature without altering the historic balance of the three co-equal branches of Government." Id.

The first Supreme Court decision that addressed the Speech or Debate Clause held that the privilege should be read broadly, to include not only "words spoken in debate," but anything "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L. Ed. 377 (1880). When the Clause applies, it is an ab solute privilege. See Eastland v. United States Service men's Fund, 421 U.S. 491, 501, 95 S. Ct. 1813, 44 L. Ed. 2d 324 (1975) ("The question to be resolved is whether the actions of the petitioners fall within the sphere of legitimate legislative activity. If they do, the petitioners shall not be questioned in any other Place about those activities since the prohibitions of the Speech or Debate Clause are absolute.") (internal quotation marks omit ted) (footnote omitted).

It is well established that the Clause provides Mem bers of Congress with two distinct privileges. See Gravel v. United States, 408 U.S. 606, 614, 92 S.Ct. 2614, 33 L. Ed. 2d 583 (1972). The first is that they are free from arrest while attending or traveling to or from a session of their House. Id.25 It is clear, however, that the "constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordi nary criminal laws . . . Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as [Thomas] Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons." Id. at 615, 92 S. Ct. 2614 (citing T. Jefferson, Manual of Par liamentary Practice, S. Doc. No. 92-1, p. 437 (1971)).

The second privilege provided to Members of Con gress by the Clause shields them from questioning in any other place for any speech or debate in either House. Gravel, 408 U.S. at 615, 92 S. Ct. 2614. Mem bers may not be made to answer, either in terms of questions or in terms of defending themselves from prosecution, for speech or activities done in furtherance of the legislative process. Id. at 616, 92 S. Ct. 2614. Ac cordingly, the Speech or Debate Clause provides both a testimonial privilege and immunity from liability for legitimate legislative acts. See McSurely v. McClellan, 553 F.2d 1277, 1299 (D.C. Cir. 1976) ( "[T]he Speech or Debate Clause acts as an exclusionary rule and testimo nial privilege, as well as substantive defense . . .").

The Speech or Debate privilege "is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but nar row enough to guard against the excesses of those who would corrupt the process by corrupting its Mem bers." Brewster, 408 U.S. at 525, 92 S. Ct. 2531; Doe v. McMillan, 412 U.S. 306, 317, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973) ("[T]he Speech or Debate Clause has finite limits . . ."). The issue here is whether the Speech or Debate Clause's privileges and immunities extend so far as to insulate a Member of Congress from the execution of a valid search warrant on his congressional office.

Congressman Jefferson argues that because the Gov ernment necessarily reviewed and seized privileged ma terial during the search, without giving Jefferson the opportunity to first segregate such privileged material, the execution of the search violated the Constitution. Congressman Jefferson and amicus are both clear that it is not their position that the office of a Member of Congress may never be searched pursuant to a valid warrant. Rather, they argue that the discovery of privi leged material by the Executive Branch during the search rendered it unconstitutional. See Reply 9. Ac cording to Congressman Jefferson, a search on a con gressional office could be executed only after the Mem ber of Congress is given the initial opportunity to iden tify and remove what he deems to be privileged mate rial. See Mem. in Supp. of Mot. for Return of Property ("Mem.") 13-14. Carried to its logical conclusion, this argument would require a Member of Congress to be given advance notice of any search of his property, in cluding property outside of his congressional office, such as his home or car, and further that he be allowed to remove any material he deemed to be covered by the legislative privilege prior to a search.26

Congressman Jefferson argues that this matter is controlled by Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), which reinforced the principle that the Speech or Debate Clause's testi monial privilege is absolute. In that case, the United States Court of Appeals for the District of Columbia Circuit quashed subpoenas issued to two Members of Congress, finding that the Speech or Debate Clause barred enforcement of the subpoenas because the mate rials sought were privileged as they came into the Mem bers' possession through the legitimate legislative pro cess. See id. at 421. The D.C. Circuit held that "docu ments or other material that comes into the hands of congressmen may be reached either in a direct suit or a subpoena only if the circumstances by which they come can be thought to fall outside 'legislative acts' or the legitimate legislative sphere." Id.

Congressman Jefferson's argument blurs the line between a subpoena and a search warrant-this argu- ment reminds one of the proverb that "the most danger ous thing in the world is to try to leap a chasm in two jumps." David Lloyd George, British Prime Minister (1863-1945). In fact, the difference between a warrant and a subpoena is of critical importance here. A search warrant, in contrast to a subpoena, is subject to the stringent requirements of the Fourth Amendment, may be issued only pursuant to prior judicial approval, and authorizes Government officers to seize evidence with out requiring enforcement through the courts. See United States v. Miller, 425 U.S. 435, 446 n.8, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). In contrast, "the person served [with a subpoena] determines whether he will surrender the items identified in the subpoena or chal lenge the validity of the subpoena prior to compliance." In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991). Because the case ad dressed civil subpoenas, and says nothing about the availability of documents pursuant to a search warrant in a criminal investigation, Brown & Williamson does not control here.27

The Court recognizes that the Speech or Debate Clause provides Congressman Jefferson with a testimo nial privilege, and further that the testimonial privilege is absolute. Unlike producing evidence in response to a subpoena, however, which is a testimonial act, see United States v. Hubbell, 530 U.S. 27, 36-37, 120 S. Ct. 2037, 147 L. Ed. 2d 24 (2000), having one's property sub jected to the execution of a valid search warrant does not have a testimonial component. See Crawford v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (describing "testimonial" evidence).

Thus, the Speech or Debate Clause's testimonial pri vilege was not triggered by the execution of the search warrant. Cf. Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976); Johnson v. United States, 228 U.S. 457, 458, 33 S. Ct. 572, 57 L. Ed. 919 (1913) ("A party is privileged from producing the evi dence but not from its production."). In Andresen, the Supreme Court held that the execution of a search war rant does not trigger the Fifth Amendment's testimonial privilege because there is no compulsion to speak or act:

". . . petitioner was not asked to say or to do any thing. The records seized contained statements that petitioner had voluntarily committed to writing. The search for and seizure of these records were con ducted by law enforcement personnel. Finally, when these records were introduced at trial, they were authenticated by a handwriting expert, not by peti tioner. Any compulsion of petitioner to speak, other than the inherent psychological pressure to respond at trial to unfavorable evidence, was not present."

427 U.S. at 473, 96 S. Ct. 2737. Similarly here, Con gressman Jefferson was not made to say or do anything. In fact, as his motion highlights, he was not even present at the search. Like in Andresen, there simply was no compulsory testimony to trigger the privilege. The Speech or Debate Clause protects Members of Congress from being "questioned." U.S. Const. art. I, § 6, cl. 1. Here, Congressman Jefferson has not been "questioned" in any way. Just as a search warrant does not trigger the Fifth Amendment's testimonial privilege, neither does a search trigger the Speech or Debate Clause's testimonial privilege.

Amicus argues that Andresen's principle that a search warrant does not trigger a testimonial privilege is inapplicable here because the Speech or Debate Clause protects against any compelled disclosure of leg islative activities and information, not inferences that may be drawn from the act of producing documents as with the Fifth Amendment. See Mem. of P. & A. of the Bipartisan Legal Advisory Group of the U.S. House of Representatives as Amicus Curiae ("Amicus Brief") 23 n.15. The arguments made by Congressman Jefferson and amicus stand for the proposition that legislative material is absolutely privileged from review by or dis closure to either of the co-equal branches of govern ment. While it is important to recognize that different policies undergird the Speech or Debate privilege and the Fifth Amendment's privilege against self-incrimi nation, the argument made by amicus contorts the poli cies behind the Speech or Debate Clause.

The purpose of the Speech or Debate Clause is not to promote or maintain secrecy in legislative activity. As Justice Douglas once stated, "The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to." EPA v. Mink, 410 U.S. 73, 105, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973) (Douglas, J., dissenting) (quoting Henry Steele Commager from The New York Review of Books, Oct. 5, 1972, at 7).

The purpose of the Speech or Debate Clause is rather to protect the independence and integrity of the legislature by not questioning Members of Congress for their legitimate legislative acts. See Brown & William son, 62 F.3d at 416 (legislative privileges and immunities designed "to prevent intimidation by the executive and accountability before a possibly hostile judiciary") (quot ing United States v. Johnson, 383 U.S. 169, 181, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966)). The Fifth Amendment also protects one from being compelled to answer ques tions. Just as the Fifth Amendment does not protect a person from disclosure of incriminating evidence, the Speech or Debate Clause does not prohibit disclosure of legislative material. Rather, it prohibits a Member from having to answer questions as to his legislative activity. Here, Congressman Jefferson has not been questioned about actions that fall within the sphere of legitimate legislative activity.

The D.C. Circuit has held that the "touchstone" of the Speech or Debate Clause privilege is interference with legislative activities. Brown & Williamson, 62 F.3d at 421. Thus the Court's decision here depends upon whether the execution of the search warrant impermissibly interfered with Congressman Jefferson's legislative work. See MINPECO, S.A. v. Conticom modity Services, Inc., 844 F.2d 856, 859 (D.C. Cir. 1988). Unlike in Brown & Williamson, the material sought here was not privileged as it did not fall within the legiti mate legislative sphere. Accordingly, the Court finds that the search did not impermissibly interfere with Congressman Jefferson's legislative activities.

Congress' capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants, which are only available in relation to criminal investiga tions, are subject to the rigors of the Fourth Amend ment, and require prior approval by the neutral third branch of government. As discussed earlier, search war rants are very different from subpoenas, which may be issued at will, are subject only to the broadest standard of relevance, and require the active participation of the recipient.

Finally, the Court finds no support for the proposi tion that a Member of Congress must be given advance notice of a search, with an opportunity to screen out and remove materials the Member believes to be privileged. Indeed, the Court is aware of no case in which such a procedure is mandated by any other recognized privi lege. To the contrary, in Zurcher, the Supreme Court expressly rejected such a requirement where the loca tion to be searched contained material protected under the First Amendment. 436 U.S. at 567, 98 S. Ct. 1970 ("[W]e decline to reinterpret the [Fourth] Amendment to impose a general constitutional barrier against war rants to search newspaper premises, to require resort to subpoenas as a general rule, or to demand prior notice and hearing in connection with the issuance of search warrants."). The Supreme Court held that no special protections are required when a search warrant is sought for a newspaper office, finding that the standard preconditions for a warrant are sufficient to protect against unjustified intrusions on the press. Id. at 565, 98 S. Ct. 1970. The Court stated:

Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants where the press was involved, did not require special showings that subpoenas would be impractical, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. . . . Properly administered, the pre conditions for a warrant-probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness- should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.

Id. Similarly here, the Framers were well aware of the long struggle between Crown and the legislature, yet did not forbid warrants where the Legislative Branch is involved and did not impose any additions to the precon ditions for such a warrant. As in Zurcher, the precondi tions for a properly administered warrant that seeks only unprivileged material that falls outside the sphere of legitimate legislative activity are sufficient to protect against the harms assertedly being threatened here. No one argues that the warrant executed upon Congress man Jefferson's office was not properly administered. Therefore, there was no impermissible intrusion on the legislature.

The fact that some privileged material was inciden tally captured by the search does not constitute an un lawful intrusion.28 See In re Possible Violations of 18 U.S.C. §§ 201, 371, 491 F.Supp. 211, 214 n.2 (D.D.C. 1980) ("The Speech or Debate Clause does not protect confidentiality of material"). The Speech or Debate Clause is not undermined by the mere incidental review of privileged legislative material, given that Congress man Jefferson may never be questioned regarding his legitimate legislative activities, is immune from civil or criminal liability for those activities, and no privileged material may ever be used against him in court.

Amicus contends that even a review of the docu ments by the Court to determine privilege is unconstitu tional. See Amicus Brief 29. Contrary to the argu ments of amicus, legislators do not have the right to determine the scope of their own privilege under the Speech or Debate Clause. The Founders expressly re jected a constitutional proposal that would have permit ted Members collectively to be the exclusive judges of their own privileges. 2 Records of the Federal Conven tion of 1787 503 (Max Ferrand ed., 1966). In opposition to the proposal, Madison explained that it would be pref erable "to make provision for ascertaining by law" the extent of privileges "previously & duly established" rather than to "give a discretion to each House as to the extent of its own privileges." Id. Indeed, it is the Judi cial Branch that ascertains the requirements of the law in accordance with Article III of the Constitution. See United States v. Nixon, 418 U.S. 683, 704-05, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (citing The Federalist No. 47, at 313 (S. Mittell ed., 1938)).

The power to determine the scope of one's own privi lege is not available to any other person, including mem bers of the co-equal branches of government: federal judges, see In re Certain Complaints Under Investiga tion, 783 F.2d 1488, 1518-20 (11th Cir. 1986), or the President of the United States, see Nixon, 418 U.S. at 703-05, 94 S. Ct. 3090. When President Nixon asserted that the "separation of powers doctrine precludes judi cial review of a President's claim of privilege," the Su preme Court held that it is "the province and duty of this Court 'to say what the law is' with respect to the claim of privilege presented in this case." Nixon, 418 U.S. at 703-05, 94 S. Ct. 3090 (quoting Marbury v. Madi son, 1 Cranch 137, 5 U.S. 137, 177, 2 L. Ed. 60 (1803)). In Nixon, the Court supported its conclusion regarding the executive privilege by relying upon a series of cases interpreting the explicit immunity conferred by the Speech or Debate Clause. 418 U.S. at 704, 94 S. Ct. 3090 (citing Doe v. McMillan, 412 U.S. 306, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973); Gravel, 408 U.S. 606, 92 S. Ct. 2614, 33 L.Ed.2d 583; Brewster, 408 U.S. 501, 92 S. Ct. 2531; Johnson, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681). The Court stated that it has "consistently exer cised the power to construe and delineate claims arising under express powers" such as the legislative privilege. Nixon, 418 U.S. at 704, 94 S. Ct. 3090.

The formulation of the Speech or Debate privilege "implies that the judiciary cannot avoid determining what are the outer limits of legitimate legislative pro cess." Brown & Williamson, 62 F.3d at 415. The claim by amicus that the Constitution does not allow a docu ment- by-document review by the judiciary fails. See In re Possible Violations of 18 U.S.C. §§ 201, 371, 491 F. Supp. 211 (D.D.C. 1980) (ordering in camera hearing to determine whether subpoenaed documents were covered by the legislative privilege at which Government was allowed to be present and to contest the claims of privi lege); Benford v. Am. Broad. Cos., 98 F.R.D. 42, 45 & n.2 (D. Md. 1983) (requiring detailed index of potentially privileged documents under Speech or Debate Clause to be submitted for judicial review and suggesting the need for in camera review of certain relevant documents "to determine whether the congressional defendants have accurately characterized their content"); cf. Nixon, 418 U.S. at 706, 94 S. Ct. 3090 ("Absent a claim of need to protect [national security], we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is signifi cantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide"). The district court in Benford refused to "blindly accept the[] conclusory and seemingly self-serving suggestion that [the House Select Committee on Aging] will screen what is and what is not protected." 98 F.R.D. at 45. Review of allegedly privi leged material by the Court is allowed and appropriate under the Constitution.

The D.C. Circuit has recognized that the Supreme Court "has been careful not to extend the scope of [the Speech or Debate Clause] further than its purposes re quire." Rostenkowski, 59 F.3d at 1302 (quoting For rester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988)). The Clause's "shield does not extend beyond what is necessary to preserve the integrity of the legislative process." Id. (quoting Brewster, 408 U.S. at 517, 92 S. Ct. 2531). The view of the Speech or De bate privilege espoused by Congressman Jefferson and amicus extends that privilege far beyond that which its purposes require, and far beyond anything the law can support. The Court has found no law, and Congressman Jefferson and amicus point to none, which sustains the provision of such a sweeping protection to Members of Congress. To do so would eviscerate the effect and pur pose of a search warrant wherever legislative materials are kept.

Here, Congressman Jefferson has not been made to answer, either in terms of questions or in terms of de fending himself from prosecution, for speech or activi ties done in furtherance of the legislative process. Therefore, the search did not violate the Speech or De bate Clause.29

2. Separation of Powers

Congressman Jefferson also argues that the issuance and execution of the search warrant in this case violated the general principle of the separation of powers, stating that "[t]he delicate balance of our democratic system was disrupted when the court authorized the executive branch to search the Member's office and peruse and remove Speech or Debate material." Mem. 13. This ar gument too must fail. As the Supreme Court has recog nized, "The check-and-balance mechanism, buttressed by unfettered debate in an open society with a free press, has not encouraged abuses of power or tolerated them long when they arose. This may be explained in part because the third branch has intervened with neu tral authority." Brewster, 408 U.S. at 523, 92 S. Ct. 2531.

Indeed, this Court intervened here with the neutral authority of the third branch as a check on the power sought to be exerted by the Executive Branch when it authorized a particularized search warrant only upon a showing of probable cause. The statement by amicus that if the search here is upheld, in the future the Gov ernment need "only to persuade a federal judge" to ob tain warrants to search other congressional offices, is a gross trivialization of the role of the judiciary. Amicus Brief 33.30 A federal judge is not a mere rubber stamp in the warrant process, but rather an independent and neutral official sworn to uphold and defend the Constitu tion.

If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legisla tive Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Mem bers of Congress to frustrate investigations into non- legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from pros ecution. "Our speech or debate privilege was designed to preserve legislative independence, not supremacy." Brewster, 408 U.S. at 508, 92 S. Ct. 2531. The execution of the search warrant upon Congressman Jefferson's congressional office did not violate the separation of powers principle.

3. Fourth Amendment

Finally, Congressman Jefferson contends that the search of his office was unreasonable in violation of the Fourth Amendment because his counsel was barred from the office during the search, and because the Gov ernment relied on a false premise in the search warrant affidavit that it had exhausted all lesser intrusive means of obtaining the evidence sought. The Court finds that there is no right to have one's counsel present during the execution of a search warrant, that there is no ex haustion requirement to the issuance of a search war rant, and further that the affidavit contained no false premise. The search was reasonable under the Fourth Amendment.

Congressman Jefferson asserts that the barring of his counsel from his office during the search violated Rule 41 and rendered the search unreasonable in viola tion of the Fourth Amendment. Federal Rule of Crimi nal Procedure 41(f)(2) provides:

An officer present during the execution of the war rant must prepare and verify an inventory of any property seized. The officer must do so in the pres ence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person.

See also United States v. Daniel, 667 F.2d 783, 785 (9th Cir. 1982) ("Neither Fed. R. Crim. P. 41(d) nor the Fourth Amendment requires that the owner of the pre mises searched be present at the time of the inven tory."). The rule says nothing about a property owner's counsel or designated representative. The Government is not required to permit a property owner or his counsel to supervise the execution of a search warrant. The plain language of the Rule clearly contemplates that the owner need not be present, as it explicitly provides that when an owner is not present, any "credible person" may witness the inventory of the search. Fed. R. Crim. P. 41(f)(2).31

The Court is not aware of any authority, and Con gressman Jefferson points to none, that holds that the right to counsel extends to the execution of a search warrant. As the Supreme Court has noted, the Constitu tion protects property owners not by giving them license to engage law enforcement officers in debate over the scope or basis for the warrant, but by requiring that warrants be issued by neutral magistrates and by per mitting parties to seek suppression after the fact. United States v. Grubbs, - U.S. -, -, 126 S. Ct. 1494, 1501, 164 L. Ed. 2d 195 (2006). A right to be present at searches is not available to any other person under the Fourth Amendment. See United States v. Stefonek, 179 F.3d 1030, 1034 (7th Cir. 1999). The Court will not cre ate such a right for Congressman Jefferson here.

Congressman Jefferson and amicus also argue that the search was unreasonable because the Government did not exhaust all less intrusive approaches to obtaining the evidence. Both recognize that such a standard is nowhere to be found in Rule 41 law (indeed they cite no law supporting this argument). Amicus states instead that the Government "established [such a standard] for itself," and urges the Court to "hold the Justice Depart ment to that standard." Amicus Brief 41; see Reply 16-17. Neither the Fourth Amendment nor Rule 41 re quires the Government to establish that a search is the least intrusive means of obtaining evidence. See Zurcher, 436 U.S. at 564-68, 98 S. Ct. 1970. The Govern ment made such a showing in the search warrant appli cation here not because the law requires it, but to dem onstrate that it did not lightly or precipitously seek a search warrant in this investigation.

To the extent that Congressman Jefferson argues that the search warrant was unreasonable because it contained false statements regarding the Government's exhaustion of lesser intrusive means of obtaining the documents, the Court finds that the affidavit to the search warrant accurately stated that the Government had exhausted all reasonable and timely alternative means of obtaining the evidence sought.

While the search here entailed an invasion somewhat greater than usual because it took place in a congressio nal office certain to contain privileged legislative mate rial, the Government has demonstrated a compelling need to conduct the search in relation to a criminal in vestigation involving very serious crimes, and has been unable to obtain the evidence sought through any other reasonable means.32 Therefore, the search conducted of Congressman Jefferson's congressional office was rea sonable under the Fourth Amendment. See Camara, 387 U.S. at 536-37, 87 S. Ct. 1727 ( "[T]here can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails").33

III. CONCLUSION

The facts and questions of law presented here are indeed unprecedented. It is well-established, however, that a Member of Congress is generally bound to the operation of the criminal laws as are ordinary persons. The Speech or Debate Clause does not "make Members of Congress super-citizens, immune from criminal re sponsibility." Brewster, 408 U.S. at 516, 92 S. Ct. 2531. Members of Congress are not "exempt[ ] . . . from lia bility or process in criminal cases." Gravel, 408 U.S. at 626, 92 S. Ct. 2614.

The existing broad protections of the Speech or De bate Clause-absolute immunity from prosecution or suit for legislative acts and freedom from being "ques tioned" about those acts (including privilege from the testimonial act of producing documents in response to a subpoena)-satisfy the fundamental purpose of the Clause to protect the independence of the legislature. The Court declines to extend those protections further, holding that the Speech or Debate Clause does not shield Members of Congress from the execution of valid search warrants. Congressman Jefferson's interpreta tion of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial prece dent and will not be adopted here. See Williamson v. United States, 28 S. Ct. at 167 ("[T]he laws of this coun try allow no place or employment as a sanctuary for crime.") (quotation omitted).

For the foregoing reasons, the Court has found that the search executed on Congressman Jefferson's con gressional office was constitutional, as it did not trigger the Speech or Debate Clause privilege, did not offend the principle of the separation of powers, and was rea sonable under the Fourth Amendment. Accordingly, the Court will deny the motion for return of property. An appropriate order will accompany this Memorandum Opinion.

ORDER

Pending before the Court is Congressman William J. Jefferson's Motion for Return of Property and Emer gency Motion for Interim Relief. For the reasons stated in the accompanying Memorandum Opinion, it is hereby

ORDERED that the Motion for Return of Property is DENIED. It is further ORDERED that the Emer gency Motion for Interim Relief is DISMISSED as moot. It is further

ORDERED that the Clerk of the Court is directed not to seal this Order and the accompanying Memoran dum Opinion, and to make those documents available to the public. It is further

ORDERED that because the Memorandum issued by President Bush on May 25, 2006, which directed the sealing of the materials seized during the execution of the search warrant at issue here, expired on Sunday, July 9, 2006, the Department of Justice shall be free to regain custody of the seized materials, and to resume its review thereof, as of Monday, July 10, 2006.

SO ORDERED.

P>20 At trial Rep. Jefferson may assert Speech or Debate Clause im munity to bar the use of records he claims are privileged. Cf. Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13-16 (D.C. Cir. 2006) (affirming denial of Member's motion to dismiss on Speech or Debate Clause ground but noting that even "[w]hen the Clause does not preclude suit altogether," it "may preclude some relevant evidence") (en banc), cert. denied, Office of Sen. Mark Dayton v. Hanson, ___U.S. ___, 127 S. Ct. 2018, 2020, 167 L. Ed. 2d 898 (2007); Johnson, 383 U.S. at 185 ("With all references to [legislative material] eliminated [from the indictment], we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause."). At this stage, however, Rep. Jefferson is entitled only to copies of the records seized by the government and judicial review of any record he claims is privileged, as our July 28, 2006 order provides. See United States v. Rayburn House Office Bldg., Room 2113, No. 06-3105 (D.C. Cir. July 28, 2006). To the extent the majority suggests that-if a Member can show disruption of his legis lative activities-the government may be required to return non-privi leged material to remedy a violation of the Clause, Maj. Op. at 665-66, thereby potentially depriving the Executive Branch of records bearing on criminality, it is a suggestion I categorically reject.

21 Congressman Jefferson's Motion for Emergency Interim Relief sought an Order enjoining FBI agents and the Department of Justice from reviewing or inspecting the seized items and sequestering those items in a secure place. On May 25, 2006, the President issued a Memo randum directing the Solicitor General to take sole custody of the materials seized from Congressman Jefferson's office, and to seal and sequester those materials from anyone outside of the Solicitor General's office for forty-five days. Accordingly, the Motion for Emergency Interim Relief is now moot.

22 The Bipartisan Legal Advisory Group presents the institutional position of the U.S. House of Representatives in litigation matters. The members of the Group are the Honorable J. Dennis Hastert, Speaker of the House; the Honorable John A. Boehner, Majority Leader; the Honorable Roy Blunt, Majority Whip; the Honorable Nancy Pelosi, Democratic Leader; and the Honorable Steny H. Hoyer, Democratic Whip. The Court granted the Group's motion for leave to file a brief as amicus curiae in support of Congressman Jefferson's motion in recognition of the importance of the House's interest in and position on the questions of serious constitutional magnitude that are raised in this matter.

23 Certain portions of this litigation remain under seal. Because this Memorandum Opinion and accompanying Order shall be made available to the public, the Opinion refers only to the redacted search warrant affidavit and to other information that is already part of the public record.

 

24 Courts' reluctance to address Rule 41 motions for return of prop erty during criminal investigations stems from the principle that the exclusionary rule does not apply to proceedings before a grand jury. See, e.g., In re Two Search Warrants Issued March 14, 1986, 110 F.R.D. 354, 355 (E.D.N.Y. 1986) (citing United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974)).

Because the grand jury does not finally adjudicate guilt or inno cence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and pro cedural restrictions applicable to a criminal trial. Permitting witnesses to invoke the exclusionary rule before a grand jury would . . . delay and disrupt grand jury proceedings.

Calandra, 414 U.S. at 349, 94 S. Ct. 613. Motions for return of property were formerly made pursuant to Rule 41(e), under which an unlawful seizure claim was considered to be equivalent to a motion to suppress. See Douleh, 220 F.R.D. at 397 n.5. Effective December 1, 2002, how ever, Rule 41 was amended and reorganized. What was formerly found at Rule 41(e) is now found at Rule 41(g). Pursuant to the amendments, under Rule 41(g) a court may return seized property to a claimant and "impose reasonable conditions to protect access to the property and its

use in later proceedings." Fed. R. Crim. P. 41(g). Accordingly, it is no longer the case that property returned subject to a Rule 41(g) motion is necessarily excluded from use in front of the grand jury.

25 "History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only." Gravel, 408 U.S. at 614, 92 S. Ct. 2614; Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 170, 52 L. Ed. 278 (1908) ( "[T]he term 'treason, felony, and breach of the peace,' as used in the [Speech or Debate Clause], excepts from the operation of the privilege all criminal offenses . . .").

26 While Congressman Jefferson does not challenge the Executive's authority to search his home or car, see Reply 2 n.1, if the discovery of privileged legislative material by the Government is a violation of the Constitution, then any location in which legislative material is kept (thus subjecting it to inadvertent seizure) would be insulated from a search, absent prior notice and opportunity to remove the privileged material.

27 In Brown & Williamson, the D.C. Circuit acknowledged that the outcome in a case involving criminal rather than civil process may be different, when it noted that the Supreme Court has "at least sug gest[ed] that the testimonial privilege might be less stringently applied when inconsistent with a sovereign interest" such as the sovereign interest in law enforcement. 62 F.3d at 419-20.

28 The cases that address how to remedy the improper use of pro tected legislative material in a criminal prosecution support the proposition that the mere disclosure of Speech or Debate material to the Government does not offend the Constitution, as in those cases, privileged material had certainly been exposed to the Government. The remedy imposed in those cases was simply that the material was excluded from use against a Member of Congress. See Johnson, 383 U.S. at 185, 86 S. Ct. 749 ("With all references to [Speech or Debate material] eliminated [from the indictment], we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause."); United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C. Cir. 1995) ( "[T]he Government does not have to establish an independent source for the information upon which it would prosecute a Member of Congress. Rather . . . the Member must show that the Government has relied upon privileged material."); Id. at 1301 (where "the indictment is valid on its face, the Speech or Debate Clause does not require pre-trial review of the evidence to be presented at trial"); United States v. McDade, 28 F.3d 283, 300 (3d Cir. 1994) (even if two overt acts were alleged in violation of the Clause, there were "numerous other overt acts" to support the indictment); United States v. Myers, 635 F.2d 932, 941 (2d Cir. 1980) (dismissal not required although grand jury heard "some evidence of legislative acts that is privileged by the Speech or Debate Clause"); compare United States v. Helstoski, 635 F.2d 200, 205-06 (3d Cir. 1980) (indictment must be dismissed where the "im proper introduction of privileged matter permeated the whole proceed ing"). None of these cases suggest that the exposure of protected legislative material to the Government violated the Speech or Debate Clause.

29 The Government argues that even if the execution of the search warrant impermissibly intruded on legislative activity, the careful pro cedures established by the Government here are sufficient to protect Congressman Jefferson from suffering any prejudice. Cf. Weatherford v. Bursey, 429 U.S. 545, 556-58, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977) (no constitutional violation where undercover agent overheard protected conversation between defendant and his attorney, but did not disclose that information to Prosecution Team, because there was not "at least a realistic possibility of injury to [defendant] or benefit to the State"). The Court finds that a harmless-error analysis is not appropriate in the context of the Speech or Debate privilege. See United States v. Swin dall, 971 F.2d 1531, 1548 n.21 (11th Cir. 1992) ("a harmless-error analysis will not excuse a violation [of the Speech or Debate Clause]"); cf. Brown & Williamson, 62 F.3d at 419 ("The degree of disruption [of the legislative process] is immaterial. . . . any probing of legislative acts is sufficient to trigger the immunity.") (emphasis in original). Here, there was no intrusion into legitimate legislative activity, as the search warrant sought only non-privileged material, and the Congress man was not compelled to provide any testimony as to his legitimate legislative activity. The Government's incidental and cursory review of documents covered by the legislative privilege, in order to extract non-privileged evidence, does not constitute an intrusion on legitimate legislative activity.

30 Amicus goes even further when it claims that the execution of a search warrant on a congressional office threatens to "reduce Congress to a subordinate branch of government by opening the door to un checked executive branch overreach and abuse." Amicus Brief 32. This claim does not merely trivialize the role of the Court, but actually ignores it completely.

31 Congressman Jefferson suggests that the search warrant return was defective because it "does not identify anyone in whose presence it was prepared or verified." Mem. 8. Rule 41 does not require the wit ness to sign or otherwise affirm the inventory or warrant return.

32 Searches of other areas in which privileged material is expected to be found have not been held to be unreasonable in violation of the Fourth Amendment. See, e.g., United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 43 (D. Conn. 2002) (search of computer believed to contain privileged attorney-client communications using filter team, with ultimate review by magistrate judge before any document was turned over to prosecution team, was "proper, fair and acceptable method of protecting privileged communications"). While some district courts have expressed reservations about the use of filter teams in seizing material protected by the attorney-client privilege, those courts have instead favored the use of special masters, magistrate judges, or the district court itself to conduct the review. See, e.g., United States v. Neill, 952 F. Supp. 834, 839-42 (D.D.C. 1997). The Court is aware of no case, however, which has found that the presence of privileged material in the location to be searched rendered such a search unreasonable in contravention of the Fourth Amendment.

33 The Memorandum issued by President Bush on May 25, 2006, which directed the sealing of the seized materials, expired on Sunday, July 9, 2006. Accordingly, as of Monday, July 10, 2006, the Department of Justice shall be free to regain custody of the seized materials, and to resume its review thereof.

APPENDIX C

 

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 06-3105

September Term, 2007
06mj00231

UNITED STATES OF AMERICA, APPELLEE

v.

18. RAYBURN HOUSE OFFICE BUILDING, ROOM 2113, WASHINGTON, D.C. 20515, APPELLANT

Filed on: Nov. 9, 2007

BEFORE: GINSBURG, Chief Judge, and SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and KAVANAUGH, Circuit Judges

ORDER

Appellee's petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

 

 

 

Per Curiam

 

FOR THE COURT:
Mark J. Langer, Clerk

 

By:
Michael C. McGrail
Deputy Clerk

 

Circuit Judges Sentelle, Henderson, Randolph, and Brown would grant the petition for rehearing en banc.

Circuit Judge Kavanaugh did not participate in this mat ter.

APPENDIX D

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

No. 06-3105
September Term, 2005
06mj00231

UNITED STATES OF AMERICA, APPELLEE

v.

RAYBURN HOUSE OFFICE BUILDING, ROOM 2113, WASHINGTON, D.C. 20515, APPELLANT

Filed on: [July 28, 2006]

ORDER

Before: SENTELLE, BROWN and GRIFFITH, Circuit Judges.

Upon consideration of the emergency motion for stay pending appeal, the opposition thereto, and the reply, it is

ORDERED that the record be remanded to the Dis trict Court for the limited purpose of making findings regarding which, if any, documents (physical or elec tronic) removed by appellee from Congressman William J. Jefferson's office pursuant to a search warrant exe cuted on May 20, 2006, are records of legislative acts. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). The District Court, ei ther through a judicial officer or a special master ap pointed for the purpose, shall 1) copy all physical docu ments seized by appellee, and provide such copies to Congressman Jefferson; and 2) using the copies of com puter files made by appellee, search for the terms listed in the warrant, and provide a list of responsive records to Congressman Jefferson. It is

FURTHER ORDERED that Congressman Jefferson shall, within two days of receiving the copied documents and list of responsive records, submit to the District Court, ex parte, any claims that specific documents or records are legislative in nature. The District Court shall review in camera any specific documents or re cords identified as legislative and make findings regard ing whether the specific documents or records are legis lative in nature. Cf. Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 962 (3d Cir. 1984). It is

FURTHER ORDERED that appellee be enjoined from reviewing any documents or records seized from Congressman Jefferson's office pending further order of this Court. It is

FURTHER ORDERED that this case be held in abey ance pending the District Court's action on remand. The Clerk is directed to transmit a copy of this order to the District Court. The District Court is requested to notify this Court promptly upon its determination of the ques tion on remand.

 

Per Curiam

/s/ ILLEGIBLE

Type: 
Petition for Writ of Certiorari
Updated October 21, 2014