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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
On a Saturday evening in May 2006, members of the Federal Bureau of Investigation launched the first raid in U.S. history on the office of a sitting member of Congress. The target was Rep. William Jefferson (D-La.), who was suspected of accepting and delivering bribes to promote business interests in Nigeria and other West African countries. After roughly 18 hours, FBI agents left with two boxes of documents and copies of all hard drives of office computers. To this day, however, much of the material remains off-limits to prosecutors, the subject of a tumultuous evidentiary challenge involving a rarely invoked constitutional provision meant to protect members of Congress from executive branch retribution. On March 21, the Supreme Court will consider whether to accept the government’s challenge to the latest ruling, which held Jefferson was entitled to the return of all legislative materials protected under the so-called “speech or debate clause.” (The petition is No. 07-816, United States v. Rayburn House Office Building, Room 2113.) The search at issue occurred more than a year after the government began its investigation of Jefferson. During a prior search of his D.C. residence, agents famously found $90,000 in cash inside a freezer. After receiving a tip from one of Jefferson’s aides, the government successfully obtained a search warrant for Jefferson’s congressional office from Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia. Mindful of potential separation of powers problems, the warrant required the FBI agents who completed the search to copy and turn over all files to a separate “filter team” — made up of two Justice Department attorneys and an FBI agent — charged with identifying any legislatively privileged documents, which would be submitted to the district court for review. Before the team could review any of the materials, however, Jefferson sought the return of all seized materials under Rule 41(g) of the Federal Rules of Criminal Procedure, alleging them to be privileged under the speech or debate clause of Article I, which provides that “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place.” The district court denied the request. But following expedited briefing and argument, a panel of judges at the U.S. Court of Appeals for the D.C. Circuit held Jefferson should have received some opportunity to review potentially legislative materials prior to — rather than following — review by agents of the executive branch. As a remedy, it remanded the case to the district court to return all documents to Jefferson it deemed related to legislative activity. (Under a previous order, the circuit permitted prosecutors to review materials Jefferson conceded were unprivileged.) While the appeal was pending, a grand jury in the U.S. District Court for the Eastern District of Virginia returned a 16-count indictment against Jefferson alleging violations of the Foreign Corrupt Practices Act and engagement in money laundering and racketeering. The trial, originally scheduled to begin last month, was indefinitely delayed pending Jefferson’s appeal to the U.S. Court of Appeals for the 4th Circuit alleging legislative immunity from prosecution. The government’s petition for certiorari, filed by then acting Solicitor General Gregory Garre, asserts the D.C. Circuit’s opinion misinterpreted the speech or debate clause and thus undermined the executive’s ability to root out corruption in Congress. The government contends the Framers enacted the clause to prevent the prosecution of legislators for “seditious” speeches, as had occurred in 16th and 17th century England, and argues that by its terms, the clause protects members of Congress only against “questioning” of “speech or debate.” Under Supreme Court precedent, the government argues, the clause only prevents members of Congress from being held liable for, subpoenaed in response to, or having evidence introduced against them as a result of legislative acts. Citing a 1972 Supreme Court ruling involving former Sen. Mike Gravel (D-Alaska), the government contends the clause does not “confer a general exemption upon Members of Congress from liability or process in criminal cases.” The government further argues that as a practical matter, the ruling below could impair public corruption investigations. Garre maintains that permitting members of Congress or their staffs to first screen documents could compromise the integrity of the search, as if, for example, screeners were to add fingerprints to the evidence or rearrange the order of documents. Opposing certiorari, Jefferson maintains the question is not whether search warrants can be executed on congressional offices in general, but whether the procedures outlined in this particular warrant complied with the speech or debate clause. The brief in opposition, submitted by Robert Trout of Trout Cacheris in Washington, notes that under the warrant approved by Hogan, Jefferson was unable to view documents before the FBI agents searched his office, and that prosecutors would immediately receive all documents the “filter team” deemed not to be potentially privileged. Trout writes that had appropriate safeguards been in place — such as permitting Jefferson to review documents in the presence of law enforcement officials — the executive branch could have validly searched the office. But in any event, Trout argues, under the D.C. Circuit’s order the Justice Department has or will receive all non-privileged documents seized from the office — exactly what it sought under the original warrant. Thus, Trout concludes, the government seeks to challenge the opinion rather than the actual judgment of the D.C. Circuit. According to Trout, then, the government seeks only an advisory opinion on the proper scope of the speech or debate clause. Ben Winograd
Other cases up for review include the following: • 07-608, United States v. Hayes (4th Circuit)Whether, to qualify as a “misdemeanor crime of domestic violence” under 18 USC 922(g)(9), the offense must have as an element a domestic relationship between the offender and the victim. • 07-822, Pennsylvania Employees Benefit Trust Fund, et al v. Zeneca Inc., et al. (3rd Circuit)Whether federal law pre-empts state law false advertising claims against marketing materials based on FDA-approved drug labels. • 07-839, Arpaio v. Doe (Court of Appeals of Arizona)Whether a prison policy against off-site transportation for non-therapeutic medical procedures, including non-therapeutic abortions, imposes an “undue burden” on female inmates’ right to terminate their pregnancy under Planned Parenthood v. Casey (1992).

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