Congressional leaders from both parties remain upset over Saturday night’s raid by the FBI on the office of Rep. William Jefferson (D-La.) in the Rayburn House Office Building, fearing that it sets a troubling precedent for future investigations of sitting lawmakers. Top lawyers from both chambers are scrambling to come up with a response to the unprecedented operation by the Justice Department.
While not commenting on the specific allegations raised about Jefferson, House Minority Leader Nancy Pelosi (D-Calif.) said the executive branch must tread very carefully when using such aggressive tactics against members of the legislative branch.
“Justice Department investigations must be conducted in accordance with Constitutional protections and historical precedent so that our government's system of checks and balances are not undermined,” said Pelosi in a statement released by her office on Monday night.
“These Constitutional protections were not devised by our Founding Fathers to put Members above the law, but to protect the independence of the Legislative Branch and the American people from the abuse of power by the Executive Branch.”
House Majority Leader John Boehner (R-Ohio) added Monday evening that “I have serious concerns” about the way the search was handled.
Scott Palmer, chief of staff to Speaker Dennis Hastert (R-Ill.), complained personally to several high-ranking Justice Department officials about the search, which began at 7:15 p.m. on Saturday night and ended the following day at around 1 p.m.
Palmer called a legislative aide at DOJ as the raid was taking place, then followed up with a call to Paul McNulty, the deputy attorney general, on Sunday afternoon, several Congressional sources said. One source described the calls as “high-decibel conversations.”
Senate leaders were also monitoring the situation closely.
“I’m very concerned as well,” Senate Majority Leader Bill Frist (R-Tenn.) said of the propriety of the FBI search.
Frist declined to offer any further comments on the issue until the House and Senate counsels “advise us as to what the proper course of action is.”
Sen. Trent Lott (R-Miss.), chairman of the Rules and Administration Committee, declined to elaborate on his personal views of the Jefferson search, but he vowed to examine its implications and determine what procedures should be implemented in the future.
“We’re going to look into it,” Lott said.
Sen. Chris Dodd (D-Conn.), the ranking member on Rules, agreed that the panel needed to conduct an overview of the precedent the search set and its consequences.
“That kind of approach is something we ought to do — to determine the legalities and how it all happened,” Dodd said.
But to some veteran Members, the raid on Rayburn represented an example of Congress being held to the same legal and criminal standard as average citizens.
“The Congress should not set itself apart from citizens,” said Sen. John Warner (R-Va.), a former chairman of Rules. Without addressing the specifics of the Jefferson case, Warner said it was important that “John Smith” be treated the same way in a criminal probe as “John Warner.”
“We should be treated alike when it comes to criminal codes,” he said.
Jefferson, as he had since the raid took place, echoed his dismay over the extraordinary step.
“I think it represents an outrageous intrusion on the separation of powers between the executive branch and legislative branch,” Jefferson told reporters on Monday.
Jefferson’s lawyers are considering filing a legal motion to challenge the search, but no action has been taken yet, sources close to the case said.
Jefferson has also refused to resign from the House despite the array serious allegations against him, which include bribery, fraud, and conspiracy to bribe foreign officials.
FBI agents received permission to execute the search warrant on Jefferson’s office last Thursday from Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia, although they did not descend on Rayburn until Saturday evening, when the building was empty.
House officials were given no advance warning of the FBI raid. Acting Chief Christopher McGaffin of the Capitol Police was contacted shortly before the FBI entered the Rayburn House Office Building on Saturday evening and was told to go there, but he was not told why.
There is no other case on record of a Member’s Congressional office being searched, and Hill leaders from both sides of the aisle fear that the Justice Department has improperly trampled on a Congressional privilege rooted in the Constitution, including violating the “Speech or Debate Clause.”
Justice Department officials defended the move as necessary.
“Of course, we understand the equities involved here and the institutional concerns,” Attorney General Alberto Gonzales said on Monday. “I will admit that these were unusual steps that were taken in response to an unusual set of circumstances.”
Bryan Sierra, a Justice Department spokesman, said the department’s sole goal in conducting the Jefferson search was to aid in the prosecution of a corruption case against a sitting Member, not to infringe upon Congressional privileges.
Sierra also noted that Hogan had approved the warrant and that the Justice Department had instituted special procedures in order to ensure that “potentially politically sensitive, non-responsive items” were returned to Jefferson. Two Justice Department attorneys and an FBI agent will act as a “Filter Team” to evaluate materials taken during the search, and Hogan will decide the fate of questionable documents.
“Search warrants are issued in criminal cases every day,” said Sierra, who pointed out that federal prosecutors had still not received documents and materials subpoenaed from Jefferson back in August. “This was the way it had to be.”
Sierra declined to comment on who within the Justice Department made the decision to seek a search warrant or the extent or nature of the debate with the department over the propriety of such an action.
But several ex-lawmakers and Congressional experts were outraged by the FBI search.
Former Speaker Newt Gingrich (R-Ga.) objected to the FBI raid, calling it “the most blatant violation of the Constitutional Separation of Powers in my lifetime” in an e-mail sent to Members on Sunday night.
“The President should respond accordingly and should discipline (probably fire) whoever exhibited this extraordinary violation,” Gingrich told his former colleagues. “There is no excuse for the FBI for the first time in history searching a congressional office and apparently doing so in total regard of due process as it relates to the Legislative Branch.”
Stan Brand, a former House general counsel, said that the Justice Department may have “tainted their entire investigation” due to the raid. “They created a huge Constitutional issue now.”
Brand was referring specifically to the Speech or Debate Clause, which is found in Article 1, Section 6 of the Constitution.
The clause provides immunity to Members and staff from all actions “within the legislative sphere,” even if conduct claimed as privileged by Members and Senators could violate civil or criminal statutes if it took place elsewhere. In addition, the clause protects lawmakers from being compelled to give testimony or to turn over privileged documents.
“The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch,” the Supreme Court wrote in a 1972 case involving the Pentagon Papers. “It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.”
Other court rulings have stated that the Speech or Debate Clause “serves the additional function of reinforcing the separation of powers so deliberately established by our Founders.”
Lawmakers have had a mixed record in recent years when invoking the Speech or Debate privilege while being prosecuted in corruption cases.
For instance, former Rep. Joe McDade (R-Pa.) successfully stood on the privilege during a 1996 corruption probe. At the time, the House ethics committee refused to turn over records it had on McDade, and after a legal battle, the House was able to sustain its position in court. McDade was acquitted on bribery and racketeering charges.
But former Rep. James Traficant (D-0hio) was less fortunate. A federal judge refused to exclude several documents from Traficant’s 2002 trial that Traficant claimed were covered by Speech or Debate. Traficant was convicted on racketeering, bribery and tax evasion and sentenced to eight years in prison.
Rep. Elijah Cummings, D-Md., right, hugs Harold Schaitberger, General President of the International Association of Fire Fighters, after the Congressman spoke at the IAFF's Legislative Conference General Session at the Hyatt Regency on Capitol Hill, March 9, 2015. The day featured addresses by members of Congress and Vice President Joe Biden.