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Searches of congressional offices must follow careful procedures to ensure that the balance is properly drawn between protecting separation of powers and meeting the needs of law enforcement. The unprecedented search of the office of Representative William Jefferson, D-La., by FBI agents has sparked a heated debate that should be resolved by an agreement between congressional leaders and the White House as to how the seized material will be handled and how such searches will be conducted in the future. Failing that, it will be the responsibility of the federal courts to ensure that adequate procedural protections are followed. The seemingly absolute positions taken by both congressional leaders and law enforcement officials are understandable, but not helpful in dealing with the issue. Speaker of the House Dennis Hastert, R-Ill., and Minority Leader Nancy Pelosi, D-Calif., immediately condemned the search and contended that any search of a congressional office violates separation of powers and the “speech and debate clause.” There is an irony when congressional leaders, who have been restrained in their criticism of unprecedented widespread warrantless electronic surveillance by the government, express such outrage when one of their own member’s office is searched pursuant to a warrant. Hastert and Pelosi cannot be right that members of Congress are immune from search or arrest. No person, of course, is above the law. A member of Congress is not immunized from all criminal investigation and prosecution by the “speech and debate clause” or by separation of powers. No Supreme Court case in history can be read as establishing such expansive immunity. But nor are executive officials right in their assertion that members of Congress can be subjected to searches like anyone else. The media have reported that Attorney General Alberto R. Gonzales, his deputy, Paul J. McNulty, and FBI Director Robert S. Mueller III threatened to resign if they were ordered to relinquish evidence gained through the search. Their position appears to ignore the profound separation of powers issues that the search raised. Investigators going through a congressional office may see sensitive internal documents, including strategy memos and confidential correspondence. Also, the power of the executive to search congressional offices risks harassment and abuse of power. A president could use such searches to intimidate members of Congress and chill them from checking the executive. The solution, therefore, can be neither in precluding all searches of congressional offices nor in allowing searches on the same terms as for others in society. It must be to develop procedures to balance the competing interests. The FBI made some efforts in this direction in the search of Jefferson, but it did not go far enough in providing procedural protections. For example, quite appropriately, the warrant was issued by U.S. District Court Judge Thomas Hogan rather than by a magistrate judge. The portions of the affidavit in support of the search that have been publicly revealed leave no doubt that even a heightened standard of probable cause was met. The 83-page document accuses Jefferson of fraud and attempting to bribe foreign officials. The FBI alleges that it has a videotape of him accepting a $100,000 bribe last July. The government says that it found $90,000 of that money hidden in a freezer in his Washington apartment. It also alleges that it has a tape of him asking for an illegal payment and of negotiating the amount. Thus there seems no doubt that the FBI was justified in conducting the search. But what seems missing was any protection to make sure that law enforcement officials did not read or seize papers unrelated to the criminal investigation and that involved confidential aspects of Jefferson’s job as an elected representative. Special master is needed The appropriate solution is to have a special master review the seized files to be sure that the FBI receives the documents pertinent to the alleged illegal activity, but not unrelated materials, particularly if they are of a sensitive nature. This type of procedure is often followed when an attorney’s office is searched. President Bush has ordered the materials seized from Jefferson’s office to be held under seal for 45 days to allow federal lawyers and congressional leaders to avoid a constitutional crisis. This allows time to negotiate an agreement to have the documents reviewed by a special master before being either turned over to the FBI or returned to Jefferson. This unprecedented search should also be the occasion for creating a protocol for such actions in the future. The rule should include a requirement for approval by a district court judge, a heightened requirement for probable cause and review of documents by a special master. Only through such procedural protections can the proper balance be struck between the needs of law enforcement and the needs of members of Congress. Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University.

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