The federal judge who signed the search warrant allowing the FBI to enter Louisiana Rep. William Jefferson's Capitol Hill office last month, will preside at a potentially contentious hearing Friday – a hearing pitting the executive and legislative branches of government in a showdown over the United States Constitution.
The ornate ceremonial courtroom at U.S. District Court in Washingotn, D.C. will be the backdrop for Judge Thomas Hogan to hear arguments from the Department of Justice and the House of Representatives, as well as Jefferson's lawyer, on the search which Hogan condoned.
The raid, say both Congressional and executive branch officials, was the first ever on a congressman's office in the sprawling Capitol complex. House leaders have called the search unconstitutional. DOJ said any special treatment for lawmakers would essentially allow Congress to block criminal investigations.
A clause in the constitution known as the “Speech and Debate Clause” lies at the crux of the looming separation of powers battle. It protects members of Congress from being questioned by the president, a prosecutor or a plaintiff in a lawsuit concerning their legislative work.
It is still not known exactly what was seized from Jefferson's office, but, whatever it was, the congressman wants it back. The materials that have been confiscated have been kept on ice, so-to-speak. In a move designed to allow the U.S. House of Representatives and the U.S. Justice Department enough time to try to resolve the issue, President George W. Bush ordered the seized material sealed and kept in the Solicitor General's office until mid-July
The courtroom arguments are likely to go something like this: The government, in their filing this week, acknowledges that under the clause, members "shall not be questioned for any speech or debate." But, the government argues, "This prohibition has nothing to say about a search warrant that, as in this case, was not directed at -- and thus did not question Representative Jefferson about - legislative activity."
The House counsel's argument maintains that the search of Jefferson's office "violated the Constitution because it took place without Congressman Jefferson having had a prior opportunity to screen out and remove records and files (or determine not to assert the privilege)." The House counsel also argues that, absent extraordinary measures, searching a congressional office violates the Speech or Debate Clause, because it "threatens to impair the legislative branch's conduct of its constitutionally-mandated functions."
Jefferson is under investigation for allegedly taking bribes in order to influence high-ranking government officials in Africa to do business with a Kentucky-based Internet company.
Jefferson has not been charged and repeatedly has denied any wrongdoing in the alleged scheme. But, a Kentucky business owner and a former congressional aide have both pleaded guilty to bribing the congressman.
Jefferson's former aide, Brett Pfeffer, who is cooperating with the Justice Department's investigation, received an eight-year prison sentence recently for his role in the scandal. Vernon Jackson, chief executive of iGate - the Kentucky company - pleaded to paying more than $400,000 in bribes to Jefferson. He has yet to be sentenced.
Joel Seidman is an NBC producer, based in Washington, DC