View Full Version : William "Cold Cash" Jefferson argued today in SCOTUS

03-21-2008, 08:02 AM
Docket: 07-816
Case name: United States v. Rayburn House Office Building, Room 2113, Washington, D.C. 20515
Issue: Whether the Speech or Debate Clause bars the Executive branch from executing a search warrant for non-legislative materials in the office of a member of Congress.

Opinion below (D.C. Circuit) (http://pacer.cadc.uscourts.gov/docs/common/opinions/200708/06-3105a.pdf)
Petition for certiorari (http://www.usdoj.gov/osg/briefs/2007/2pet/7pet/2007-0816.pet.aa.pdf)
Brief in opposition (http://www.scotusblog.com/wp/wp-content/uploads/2008/03/07-816_bio.pdf)
Petitioner’s reply (http://www.usdoj.gov/osg/briefs/2007/2pet/7pet/2007-0816.pet.rep.pdf)
Amicus brief of Scott B. Palmer (in support of the respondent) (http://www.scotusblog.com/wp/wp-content/uploads/2008/03/07-816_cert_amicus_palmer.pdf)

(excerpt from DC Circuit Court)

The special procedures outlined in the warrant affidavit
would not have avoided the violation of the Speech or Debate
Clause because they denied the Congressman any opportunity
to identify and assert the privilege with respect to legislative
materials before their compelled disclosure to Executive agents.
Indeed, the Congressman, his attorney, and counsel for the
House of Representatives were denied entry into Room 2113
once the FBI arrived. The special procedures described in the
warrant affidavit called for review by FBI agents and the several
members of the Justice Department filter team before the

Congressman would be afforded an opportunity to identify
potentially privileged materials. This procedure is significantly
different even from those the Executive has on occasion
afforded to other privileges not protected in the Constitution; for
example, in United States v. In Re: Search of Law Office, 341
F.3d 404, 407 (5th Cir. 2003), the privilege holder was allowed
an opportunity to identify documents protected under the
attorney-client privilege at the point the search was completed.
Although the Supreme Court in Weatherford v. Bursey, 429 U.S.
545, 558 (1977), distinguished between the receipt of privileged
information by an agent of the Executive and by the prosecution
team in the context of a civil rights claim based on a Sixth
Amendment violation, the nature of the considerations presented
by a violation of the Speech or Debate Clause is different. If the
testimonial privilege under the Clause is absolute and there is no
distinction between oral and written materials within the
legislative sphere, then the non-disclosure privilege for written
materials described in Brown & Williamson, 62 F.3d at 421, is
also absolute, and thus admits of no balancing, cf. United States
v. Nixon, 418 U.S. 683 (1974); Moody v. IRS, 654 F.2d 795, 799
(D.C. Cir. 1981). The compelled disclosure of legislative
materials to FBI agents executing the search warrant was not
unintentional but deliberate — a means to uncover responsive
non-privileged materials.
There would appear to be no reason why the Congressman’s
privilege under the Speech or Debate Clause cannot be asserted
at the outset of a search in a manner that also protects the
interests of the Executive in law enforcement. To the extent the
Executive expresses concern about the burdens placed upon the
district court and attendant delay during judicial review of
seized materials, the Remand Order illustrates a streamlined
approach by narrowing the number of materials the district court
may be required to review. The historical record utterly devoid
of Executive searches of congressional offices suggests the

Regardless of whether the accommodation is by initially sealing
the office to be searched before the Member is afforded an
opportunity to identify potentially privileged legislative
materials prior to any review by Executive agents or by some
other means, seriatim initial reviews by agents of the Executive
of a sitting Member’s congressional office are inconsistent with
the privilege under the Clause. How that accommodation is to
be achieved is best determined by the legislative and executive
branches in the first instance.5 Although the court has
acknowledged, where it is not a Member who is subject to
criminal proceedings, that the privilege might be less stringently
applied when inconsistent with a sovereign interest, see Brown
& Williamson, 62 F.3d at 419-20; supra note 4, this observation
has no bearing here and is relevant, if at all, to the question of
remedy for a violation, not the determination of whether a
violation has occurred.
Accordingly, we hold that a search that allows agents of the
Executive to review privileged materials without the Member’s
consent violates the Clause. The Executive’s search of the
Congressman’s paper files therefore violated the Clause, but its
copying of computer hard drives and other electronic media is
constitutionally permissible because the Remand Order affords
the Congressman an opportunity to assert the privilege prior to
disclosure of privileged materials to the Executive; the
6 As a result of the 2002 Amendments, Rule 41(e) now
appears with minor stylistic changes as Rule 41(g). United States v.
Albinson, 356 F.3d 278, 279 n.1 (3d Cir. 2004).
Executive advises, see Appellee’s Br. at 14, 62-63, that no FBI
agent or other Executive agent has seen any electronic document
that, upon adjudication of the Congressman’s claim of privilege,
may be determined by the district court to be privileged
legislative material...

...Applying these principles, we conclude that the
Congressman is entitled, as the district court may in the first
instance determine pursuant to the Remand Order, to the return
of all materials (including copies) that are privileged legislative
materials under the Speech or Debate Clause. Where the Clause
applies its protection is absolute. For the reasons stated, absent
any claim of disruption of the congressional office by reason of
lack of original versions, it is unnecessary to order the return of
non-privileged materials as a further remedy for the violation of
the Clause. The Congressman has suggested no other reason
why return of the non-privileged documents is required pursuant
to Rule 41(g), and, in any event, it is doubtful that the court has
jurisdiction to entertain such arguments following the return of
the indictment. Unlike the Congressman’s request for the return
of legislative materials protected by the Speech or Debate
Clause, the further claim for the return of all non-privileged
materials is not independent of the criminal prosecution against
him, especially if the legality of the search will be a critical issue
in the criminal trial.

03-21-2008, 08:08 AM
Essentially the issue is weighing the chilling effect created by compelled disclosure of legislative materials versus the executive's interest in criminal enforcement (and corruption control in the legislature).

I agree with the D.C. Court's analysis that the search was a technical violation of the Speech and Debate clause, but don't think I agree with there being no remedy. The argument that allowing the executive to seize materials and then telling them to just play nice and hand them back i don't think is enough of a deterrent.

03-21-2008, 08:12 AM
"Chilling effect"


03-21-2008, 08:16 AM
"Chilling effect"


i didn't even do that on purpose ROFL