Justice Department lawyers said today it will make another concession to Congressman William Jefferson, D-LA, in the fight over the search of Jefferson's Capitol Hill office.
In the latest court filing involving the search, prosecutors say they'll provide Jefferson with copies of everything taken from his office in the weekend raid. Before the FBI agents investigating the corruption case are allowed to see the documents, Jefferson's lawyers will have a chance to urge a judge to exclude any items they consider protected by the Constitution's Speech and Debate clause privilege.
As for the search itself, government lawyers today argued it did not violate the Constitution. They say that Rep. Jefferson's position would extend the Speech and Debate clause's immunity so far that it would make it impossible to search any place that might contain even one privileged document. That should be rejected, they say, because the courts have held that "the laws of this country allow no place or employment as a sanctuary for crime."
Last Thursday President George W. Bush directed the Department of Justice to seal all the materials recovered from Congressman Jefferson’s office for the next 45 days and not to allow access to anyone involved in the investigation. He also ordered the sealed materials to remain under the custody of the solicitor general, who heads a separate office within the Justice Department, and is not involved in the investigation.
Earlier today, at a House Judiciary Committee hearing, Chairman James Sensenbrenner said he will summon Attorney General Alberto Gonzales and FBI Director Robert Mueller before his panel to explain their decision to raid a lawmaker’s office for the first time in history.
“I want to have Attorney General Gonzales and FBI Director Mueller up here to tell us how they reached the conclusion they did,” said Sensenbrenner, one of President Bush’s most loyal House allies. Sensenbrenner’s hearings, which began Tuesday, are examining whether the raid on May 20 violated the Constitution.
Calling the decision to authorize the raid “profoundly disturbing,” Sensenbrenner signaled that he would not be among the lawmakers backing off their criticism of the Bush administration. Any progress in talks between House and Justice Department lawyers in crafting guidelines for future criminal investigations of Congress would not deter Sensenbrenner from calling the administration to account for weekend search of Rep. William Jefferson’s offices.
“They didn’t get it right this time,” Sensenbrenner said.
For his part, Gonzales has said that the search of Jefferson’s offices was legal and necessary because the Louisiana Democrat had not cooperated with investigators’ other efforts to gain access to evidence. An affidavit on which the search warrant was based said investigators had found $90,000 stashed in the freezer of Jefferson’s house.
The Justice Department filed court papers Tuesday opposing the congressman’s demand that property seized in the office raid be returned. Such a step would be “fundamentally inconsistent with the bedrock principle that ’the laws of this country allow no place or employment as a sanctuary for crime,”’ the papers said, quoting language from a near-century-old Supreme Court case.
Jefferson’s interpretation would remove courts from their traditional role of ruling on privilege claims and would subvert the principle that members of Congress are not immune from ordinary criminal procedures, the department said in U.S. District Court in the District of Columbia.
Hearing titled 'Reckless Justice'
While not defending Jefferson, Sensenbrenner made clear his opposition to the raid on constitutional grounds, titling Tuesday’s hearing “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?”
Calling it the first of three hearings into the matter, Sensenbrenner was not mollified by President Bush’s order last week to seal the case, nor behind-the-scenes negotiations since then toward establishing a procedure for future searches.
At the session, Democrats said a member of the Bush administration, and not just legal experts, should have been called before the panel to answer for the raid.
“We’ve never been told why the search had to be done in the middle of the night,” noted ranking Democrat John Conyers of Michigan. “We’ve never learned why the member in question was not permitted to have his attorneys present while his offices were searched for some 18 hours.”
The hearing comes more than a week after the FBI conducted an overnight raid of the Rayburn House Office Building suite of Rep. William Jefferson, D-La., as part of a bribery investigation, without giving House leaders advance notice. House Speaker Dennis Hastert and Democratic Leader Nancy Pelosi issued a rare joint statement last week protesting the raid as a violation of constitutional separation of powers protections.
Subpoena administration documents?
One witness at the hearing, former Rep. Bob Walker, R-Pa., said Congress should play hardball in seeking answers to its questions by subpoenaing administration documents authorizing the raid.
“The American people should be deeply concerned that a decision to conduct a raid on Congress was made consciously and evidently at high levels inside the Justice Department and the FBI,” Walker told the panel.
“If the Rayburn raid was a precedent for coming attractions and intimidating tactics, the way Congress responds initially must be improved.”
Sensenbrenner said he planned a third hearing into the matter, on constitutional issues.
House and Justice Department lawyers are trying to agree on guidelines for any future searches in criminal investigations — including the FBI’s influence-peddling probe centered around convicted lobbyist Jack Abramoff.
Across the Capitol meanwhile, Senate Majority Leader Bill Frist, R-Tenn., joined his Democratic counterpart, Minority Leader Harry Reid of Nevada, over the weekend in declining to criticize the FBI for the raid. Frist said he does not believe the law enforcement agency violated the separation of powers.
NBC's Justice Correspondent Pete Williams contributed to this report.