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After the scandal broke over Rep. Mark Foley, the Department of Justice asked the former congressman’s office to maintain all e-mails, instant-message logs, and papers. Although nearly a month has passed, the department has yet to review any of this material. Why? The likely answer is because of the precedent set by the case involving Rep. William Jefferson. When the FBI seized papers and computer files from Jefferson’s congressional office last May as part of a bribery investigation, the House leadership was outraged. Members on both sides of the aisle stridently claimed that the search threatened the very fabric of our governmental structure. “The search violates the separation of powers,” they cried. When Jefferson (D-La.) challenged the search in court, members formed a Bipartisan Legal Advisory Group to file briefs arguing that the government had absolutely no right to Jefferson’s papers and computer files. This argument will come back to haunt House leaders now that we are embroiled in yet another scandal involving the private and potentially criminal conduct of another member of Congress, then-Rep. Foley (R-Fla.). Like Jefferson, Foley is under investigation by the FBI for potential criminal violations. And as in the Jefferson case, evidence of Foley’s crimes may be found in his congressional office, where he allegedly used his computer to engage in Internet sex with minors. The Justice Department and the House of Representatives are avoiding the similarities, whether because of political reasons or the more sordid elements of Foley’s behavior. Yet the Foley matter is legally indistinguishable from the Jefferson case. House members who previously argued that the office of a member of Congress is off limits to law enforcement authorities cannot now blithely hand over the material in Foley’s office simply because they find his conduct more repellent. In Jefferson’s case, Jefferson and the advisory group argued that because the government reviewed and seized privileged material during the search of Jefferson’s office, without first giving Jefferson the opportunity to segregate material privileged under the Constitution’s speech-or-debate clause, the search violated the Constitution. According to House members, a search of a congressional office may be executed only after the member of Congress has the opportunity to identify and remove privileged material. SPEECH, NOT SEARCHES In his July 10 opinion in the Jefferson investigation, Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia recognized that the speech-or-debate clause is a testimonial privilege and that having one’s property searched pursuant to a valid warrant does not have a testimonial component. Thus, Hogan concluded, because Jefferson was not forced to say or do anything, the speech-or-debate clause’s testimonial privilege was not triggered by the execution of the warrant. Hogan rejected the argument put forth by the advisory group that legislative material is absolutely privileged from review by a coequal branch of government. He found that the purpose of the speech-or-debate clause is not to promote or maintain secrecy in legislative activity, but to protect the independence and integrity of the legislature. He found that the clause does not prohibit the disclosure of legislative material, but rather prevents a member of Congress from being forced to answer questions about legislative activity. Further, Hogan rejected the argument that legislators have the right to determine the scope of their own privilege by reviewing their documents before producing them. He reasoned that such a right is not available to any other person, including judges or the president. He found that such a sweeping interpretation of the privilege would “eviscerate the effect and purpose of a search warrant wherever legislative materials are kept.” Hogan issued an order denying Jefferson’s motion for the return of the materials taken from his office and allowing the government to resume reviewing the material. In response, Jefferson filed a motion for a stay pending appeal to prevent the government’s review. On July 25, the U.S. Court of Appeals for the D.C. Circuit granted the motion and enjoined the government from reviewing the materials seized from Jefferson’s office while the court considered the merits of the motion. Three days later, on July 28, in a per curiam order, the D.C. Circuit essentially overruled Hogan, remanding the case for the District Court to make findings as to which documents seized from Jefferson’s office are protected by the speech-or-debate clause. The District Court was ordered to provide Jefferson with copies of all documents seized, as well as a list of records from the computer files that used the terms in the search warrant, to allow Jefferson to make an ex parte submission to the lower court that certain documents could be withheld as legislative material. The District Court also was directed to review such documents in camera and determine whether they are legislative in nature. Finally, the D.C. Circuit enjoined the government from reviewing any of the records seized pending further order of the court. Jefferson’s motion to stay is still pending, and a multitude have filed notice of their intention to participate as amicus, including former Speakers of the House Newt Gingrich and Thomas Foley, former Rep. (and former D.C. Circuit Judge) Abner Mikva, the Washington Legal Foundation, and congressional scholars Thomas Mann and Norman Ornstein. Although the appellate court has not ruled on the merits of Jefferson’s claims, as the matter stands, Jefferson has the opportunity to argue privilege under the speech-or-debate clause before the Department of Justice can review even so much as a single document taken from the congressman’s office. What is good for the goose is good for the gander. If Jefferson can review documents seized from his office before the government can, then so can Foley — and so can the next member who keeps evidence of his crimes in his congressional office. A BLOODY KNIFE? From the day we learned that Jefferson’s office had been searched, Citizens for Responsibility and Ethics in Washington opined that the office of a member of Congress should be treated no differently from the office of any other individual, public or private — all must yield to a validly executed search warrant. We warned that the next time a congressman might try to conceal a bloody knife. Instead, it turns out to be evidence of the sexual exploitation of minors. CREW, like Hogan, believes that the speech-or-debate clause does not protect members from searches conducted pursuant to valid warrants. Rather, it protects members of Congress from being prosecuted for activities related to the legislative process. Simply stated, a search warrant does not implicate Jefferson’s (or Foley’s) speech or debate. Yet having argued otherwise in a case that is legally indistinguishable from Foley’s, the House leadership now has the unenviable task of defending Foley’s right to bar investigators’ access to his former office, in which there may well be evidence of his crimes. No one can seriously question that without access to his office computer files, the FBI cannot properly and thoroughly investigate Foley’s conduct. That the government has yet even to seek a warrant is undoubtedly the result of the response to the Jefferson situation and the D.C. Circuit’s ruling in the congressman’s favor. By arguing that the offices of members of Congress deserve more protection than the offices and homes of other citizens, Congress suggests that it is more interested in protecting its members than ensuring that members comply with the law. Now, as a result of that ill-advised position and the ensuing legal rulings, Foley may never have to account fully for his actions. In an era when misconduct among members of Congress is at an all-time high — a record 19 members are currently under federal investigation — Congress cannot be permitted to use the speech-or-debate clause to cloak evidence of wrongdoing.
Melanie Sloan is executive director of Citizens for Responsibility and Ethics in Washington. She previously worked as an assistant U.S. attorney in the District of Columbia.

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