Embattled Rep. William Jefferson, the Louisiana Democrat who is being investigated by the Department of Justice in a bribery probe, today had his day in court.
A three-judge panel for the U.S. Court of Appeals for the District Columbia heard arguments about the legitimacy of an FBI raid on Jefferson's Capitol Hill offices, and whether they should order the return of documents seized to the congressman.
Last May FBI agents armed with a search warrant raided Jefferson's congressional offices and seized more than a dozen computer hard drives, several floppy discs and two boxes of documents.
That raid on a congressman's office was the first in U.S. history.
Judges Douglas Ginsburg, Karen Henderson and Judith Rogers - who comprised the panel - heard arguments from Jefferson's attorney Robert Trout and the Justice Department's Deputy Solicitor General Michael Dreeben.
Jefferson did not attend the hearing.
An alliance of former Republican and Democratic Speakers of the House are siding with Jefferson, calling the FBI raid unconstitutional. Newt Gingrich, and Tom Foley - in an amicus brief - called the raid an "intrusion," "heavy handed," and "intimidating" to a Member of Congress. Joining them in opposing the search is former House Minority Leader Robert Michel, a Republican.
The overnight search last year which included 15 FBI agents and lasted 18 hours -- and was part of an international bribery investigation of Jefferson, who allegedly accepted $100,000 from a telecommunications businessman, $90,000 of which was later recovered in a freezer in the congressman's Washington home. The federal probe began in March 2005.
Jefferson's attorney argued that the search was "unconstitutional" and violated the Search or Debate clause of the U.S. Constitution. Trout said this separation of powers protection is "absolute." Trout added "a breathtaking" amount of documents were seized in the raid. Nearly 19,000 pages of documents and electronic files were seized by prosecutors and the FBI. He said the search team "reviewed everything" even documents that dealt with legislative activities of the congressman which were off limits he said according to the Speech or Debate clause. He said, how do we know if one of the agents didn't say, "'Hey Joe, get a load of this. This is really interesting.'" And Trout asserted that some of the documents were leaked by the search team to other elements of the Justice Department.
But Chief Judge Ginsberg, who had earlier issued a stay to the government's review of the seized documents and ordered that Jefferson begin his own review to determine which ones he considered privileged, questioned how long it would take for the congressman to complete the process.
Ginsberg asked, if it takes Jefferson three or four months, "how does the government preserve loss or destruction" of the documents?
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The Deputy Solicitor General argued that the search did not seek any legislative records and that the federal agents involved had nothing to do with the criminal investigation of the congressman. Dreeben said that the Justice Department sought the search warrant to enter Jefferson's office because there was "evidence that in another search, Representative Jefferson tried to conceal evidence."
Jefferson, according to court documents, is being investigated concerning allegations that he solicited and accepted bribes to help promote a cable television and Internet business in West Africa.
The money found in the freezer, according to court documents, was divided into $10,000 increments and placed in "various frozen food containers and wrapped in aluminum foil." The documents said the money was intended to pay a middleman - his name is blacked out in the court papers - who might help Jefferson secure contracts in Nigeria.
Last September Vernon Jackson, the CEO of a Kentucky technology company, who pleaded guilty to bribing Jefferson, was sentenced to seven years in prison.
Jackson admitted to funneling more than $400,000 to the ANJ Group, a company headed by Jefferson's wife and children. He said the payments were in exchange for Jefferson's help in trying to land him telecommunications deals in Africa.
Jefferson and House leaders had vigorously argued that the search of a Capitol Hill office was unconstitutional because FBI agents had combed through "protected" material during their search for evidence.
The congressman has not been charged and has insisted he has an explanation for all the allegations. Jefferson has repeatedly predicted he will eventually be cleared of all wrongdoing.
"Congressman Jefferson has never asserted that he is above the law," Jefferson's attorneys said in their legal brief. His lawyers say, only if Jefferson was first allowed to cull through his documents and separate the ones he considered legislative and "protected" outside the purview of the executive branch, could a search be carried out.
The best remedy, Jefferson's attorneys said, is for the appeals court to order all the seized documents off-limits to the government.
The Justice Department argued in their brief that if the court were to allow a member of Congress to exclude material deemed legislative, he could remove cash before investigators have a chance to conduct a search.
"If agents observed the Congressman placing $100,000 in cash into his briefcase after a meeting with corporate interests, he would be able to delay the search of his briefcase, remove materials he claimed to be privileged, and shield those materials from search, on the theory than an agent's incidental contact with any legislative materials would violate the Speech or Debate Clause."
But that's not the issue in this case, Jefferson's attorneys said.
"The congressman's concern is not that the agents merely shuffled through or observed his papers, but that execution of the warrant necessarily required them to review the content of the congressman's legislative materials," Jefferson's attorneys said.
The documents, the lawyers said, would include confidential letters from Jefferson 's constituents and information about legislation and legislative strategy.
'You know I cannot talk about that'
Last week Attorney General Alberto Gonzales, appearing before the House Judiciary Committee, was asked about the Jefferson investigation.
Rep James Sensenbrenner, R-Wis, told Gonzales, "My constituents are asking me when something is going to happen, whether an indictment is going to be returned or whether the Justice Department is going to make an announcement that there's insufficient evidence to prosecute Representative Jefferson.?"
Sensenbrenner added, "When can the public expect some news one way or the other on this issue?
The Attorney General replied, "Congressman, you know I cannot talk about that."
"Well, everybody's talking about it except you," said Sensenbrenner.
Separation of powers
Last June in a U.S. District Court hearing that pitted Congress and the Bush administration in a constitutional showdown, Judge Thomas Hogan expressed skepticism about Jefferson argument that he is protected by the constitution, "I am not sanguine with arguments made by lawyers for Mr. Jefferson and for the House," he said. Hogan is the judge who authorized the FBI raid by signing the search warrant.
The judge noted that the Speech or Debate Clause in the constitution - which protects Members of Congress from being questioned by the president, a prosecutor or a plaintiff in a House, including Rep. Dennis Hastert, R-Ill., have supported Jefferson's argument that the search of his office violated his right to assert protection under the constitutional provision that prohibits prosecution of Members for their participation in "speech or debate" in the Congress.
Former House Speakers Newt Gingrich, a Republican, and Tom Foley, a Democrat, are siding with Jefferson, are also urging the appeals court to rule that the raid was an unconstitutional intrusion on the legislative branch.
Briefs supporting the congressman's appeal also have been filed by four former counsels to the House of Representatives; Norm Ornstein of the American Enterprise Institute and Thomas Mann of the Brookings Institution.
Gingrich and Foley, joined by former House Minority Leader Bob Michel, R-Ill., said the raid was conducted in an "unreasonable and unconstitutional manner" and therefore the documents and computer records seized from his office should be returned to Jefferson.
In their brief Gingrich, Foley and Michel said the raid was conducted in such a heavy-handed way as to cause an "intimidating effect" on all members. Members might fear confidential information could be seized by the Justice Department.
"It's fair to assume investigators had to rummage through all the congressman's visitor sign-in books, ledgers, paper telephone messages, appointment calendars and other records related to visitors and telephone calls, along with computer hard drives," the three former House leaders said in their brief.
"Leaks are commonplace in Washington, and the prospect that leaks of sensitive political or personal information may ensue from Executive Branch searches of congressional offices would surely be intimidating," their brief said.
House Speaker Nancy Pelosi, D-Calif., who last year joined then-Speaker Hastert in challenging the raid, decided not to file a brief at this time.
Paul Orfanedes, director of litigation at Judicial Watch, which has filed a brief supporting the FBI search argued that Jefferson has not proven that the activities in question were a legitimate legislative act, and therefore should not be protected under the Constitution's Speech or Debate Clause.
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