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WASHINGTON � During his 10 years as general counsel of the U.S. House of Representatives, Steven Ross faced “dozens and dozens” of executive branch subpoenas in some of the most acrimonious investigations in that chamber’s history. But those clashes always were resolved in an “appropriate fashion,” he recalled. “These are dealings between coordinate branches of government, and there is a proper way of going about it,” said Ross, a partner in Washington’s Akin Gump Strauss Hauer & Feld. The physical search of a lawmaker’s Capitol Hill office by FBI agents and Justice Department attorneys who refuse to allow the lawmaker’s counsel or even the House’s general counsel to observe the search is a “unilateral exercise of force” that is not, he added, the proper way to protect and respect the Constitution’s allocation of powers. The House Judiciary Committee held a hearing on the matter Tuesday. The Washington Post reported Wednesday that Judiciary Committee Chairman F. James Sensenbrenner Jr., R-Wis., said he wants Attorney General Alberto Gonzales and FBI Director Robert Mueller III to appear “up here to tell us how they reached the conclusion” to conduct the raid, which Sensenbrenner called “profoundly disturbing” on constitutional grounds. He also said that his committee “will be working promptly” to draft legislation that would clearly prohibit wide-ranging searches of lawmakers’ offices by federal officials pursuing criminal cases. But if it is improper, is it also unconstitutional? The legal questions stemming from the May 20 search of the congressional office of Rep. William Jefferson, D-La., the target of a bribery investigation, are now before a federal district judge in Washington. Regardless of how those questions are answered, a line has been crossed with serious implications for separation of powers, said executive power scholar Peter Shane of Ohio State University Michael E. Moritz College of Law. “Whether or not the search of Jefferson’s office was technically a violation of the Constitution, a Congress doing business under the expectation their offices may be routinely searched is not a Congress doing business as a co-equal branch of government,” he said. The U.S. Department of Justice’s criminal resource manual for U.S. attorneys notes that proving the “official act” element of the federal crimes of bribery and gratuities against members of Congress presents prosecutors with “unique problems” rooted in the Constitution’s speech or debate clause. That clause protects members “against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” U.S. v. Brewster, 408 U.S. 501, 525 (1972). It ensures their independence and also reinforces the separation of powers, but it does not insulate them from prosecution for criminal acts. The manual notes “the customary practice” when seeking information from a recalcitrant senator or representative is to route the request through the clerk of the House or the secretary of the Senate. “This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.” It is not clear whether the FBI and the Justice Department followed the “customary practice.” They reportedly subpoenaed documents from Jefferson last August. Justice officials have said they sought the search warrant after exhausting all efforts to obtain the information. All efforts were not exhausted, said Jefferson’s attorney, Robert Trout of Washington’s Trout Cacheris. Trout last week filed a motion requesting that all materials seized during the search be returned immediately. He argues that the search violated the Constitution because the review by federal agents of every paper and file in Jefferson’s office and the seizure of his computer hard drive required agents to read privileged materials. Barring the House general counsel and Jefferson’s counsel from the office during the search, Trout added, violated Federal Rule of Criminal Procedure 40(f)(2), which requires an officer present during the search to prepare and verify an inventory of property seized and to do it in the presence of another officer and the person from whom the property was seized. And the search was unlawful because it was based on the false premise that there were no less intrusive ways of obtaining the materials, he said. Whether the search passes legal muster, scholars and others say, will depend on the nature of the materials seized and the reasonableness of the manner in which it was conducted. “There clearly are going to be materials within the materials seized that do not have bearing on any prosecution,” said Ohio State’s Shane. “To the extent they represent deliberations or transactions in which the member has exchanged legislative ideas and they may be exposed to the executive branch really strikes me as contradicting separation of powers,” Shane said. A search warrant in this situation is “particularly pernicious” because there is no adversary proceeding where the member can assert the speech or debate clause as to specific documents, said former House General Counsel Stanley Brand of Washington’s Brand Law Group. And, even worse, Brand added, there was no neutral observer present to witness whether privileged records were viewed. “How do we unscramble the egg after the fact if no independent, fair-minded person was there to observe?” Jefferson’s remedies here, said Brand, all lie with the court. He has the right to challenge the search and to attack collaterally any indictment because of tainted evidence. And the House itself has standing to challenge this search, he added. The strongest historical parallel to the Jefferson search was the controversy surrounding the FBI’s undercover tactics against members of Congress in the 1978 Abscam bribery sting, said former solicitor and deputy general counsel of the House, Charles Tiefer, of the University of Baltimore School of Law. After the Abscam trials, the Senate spent a year investigating what happened in Abscam, shedding light on questionable FBI tactics and informants, Tiefer said. Ultimately the Justice Department adopted guidelines for similar operations, Tiefer said. “You have to decide how far certain tactics are going to be allowed,” he said. “Once you rule them in, you aren’t dealing with the most sleazy congressmen.” He added: “It now means members of Congress should not think of their physical offices as safe places.” Marcia Coyle is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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