Former Speakers Newt Gingrich (R-Ga.) and Tom Foley (D-Wash.) and former House Minority Leader Bob Michel (R-Ill.) have notified an appeals court that they will intervene in the legal challenge by Rep. William Jefferson (D-La.) to the May 20 FBI raid of his Capitol Hill office.
Gingrich, Foley and Michel submitted a notice with the U.S. Court of Appeals for the District of Columbia Circuit that they will be filing an amicus brief arguing that the FBI search of Jefferson’s office was unconstitutional and a violation of the separation of powers between the legislative and executive branches.
Separately, Abner Mikva, former chief judge of the D.C. appeals court and a five-term Democratic Representative from Illinois, also will file an amicus brief on Jefferson’s behalf.
In addition, a bipartisan group of former House general counsels, including Charles Tiefer, Stanley Brand, Steven Ross and Thomas Spulak, as well as Congressional scholars Norman Ornstein and Thomas Mann, have notified the appeals court of their intentions to weigh in on the case.
Former House Minority Leader Richard Gephardt (D-Mo.) was asked to join with his three former colleagues but declined to do so, several sources said.
The two former Speakers, House Minority Leader and Congressional experts will not defend Jefferson, who is the target of an ongoing corruption probe by the Justice Department, but will argue that the Justice Department overstepped its bounds when it searched Jefferson’s office.
Justice Department officials have defended their actions as necessary in light of the Louisiana Democrat’s refusal to comply with subpoenas directing him to turn over materials and documents sought by federal investigators. Two of Jefferson’s accomplices in a long-running bribery scheme already have been sentenced to lengthy prison terms.
The Justice Department also notes that a federal judge approved a search warrant for Jefferson’s office and that special techniques were employed so that privileged legislative documents and materials were not seized by FBI agents.
However, the appeals court in late July ordered Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia, who approved the original search warrant for Jefferson’s office, to allow the lawmaker’s attorneys to have access to the seized documents and computer hard drives.
The process of assembling that material for Jefferson has bogged down the corruption probe, according to sources close to the case. It will be several more weeks before an official appointed by Hogan to oversee the transfer to Jefferson completes his work, and then Jefferson will be allowed to file legal motions claiming Speech or Debate Clause protection for the materials. Hogan will then have to rule on the motions, some of which could succeed. Only at that point would the case return to the appeals court and a briefing schedule be laid out.
In the meantime, the Justice Department is unlikely to take any criminal action against Jefferson since to do so would mean that none of the materials in his office, which prosecutors currently cannot review, were necessary to charge him with wrongdoing. One source estimated that it could be “four to six weeks” before all the seized materials are available for Jefferson, which means that the Louisiana Democrat may not face any legal charges before the Nov. 7 elections.
But even with all the confusion over the contested materials, Jefferson continues to gain new allies in his ongoing court fight with the Justice Department.
Already, a bipartisan group of House leaders that included Speaker Dennis Hastert (R-Ill.) and Minority Leader Nancy Pelosi (D-Calif.) filed an amicus brief before Hogan when he initially considered Jefferson’s
request to declare the search unconstitutional, although Hogan rejected the group’s arguments. That group may file a similar amicus brief with the appeals court, although the two party leaders have not agreed yet on whether they will do so.
With the appeals court’s 60-day filing deadline for non-governmental parties about to expire, Gingrich, Foley and Michel declared their intention to enter the case on Tuesday, as did the others.
Gingrich has been particularly vocal in expressing his displeasure over the FBI search, publicly decrying it as a violation of separation of powers between the two branches of government.
Much like Hastert and Pelosi, Gingrich did not seek to protect Jefferson but instead insisted that Congress cannot allow such a precedent, because it could be abused by a future administration in a political battle with Capitol Hill, to stand.
Gingrich was not available for comment on Tuesday, but he made his feelings about the case known in a June 8 opinion piece in Roll Call.
“But what is not firmly settled, and what is a dramatic departure from established practice, is the executive branch’s bold assertion that it can direct the FBI to raid a legislative branch office, with a judicial warrant, without consultation or cooperation from legislative branch leaders, as it did for the first time in the history of the American republic on May 20,” Gingrich wrote.
In an interview, Michel said he had not seen a draft of the amicus brief that will be filed by the three former lawmakers but had agreed to sign onto the motion.
“All I did was agree to at least participate,” said the former Illinois Republican. Michel said the brief was being drafted by lawyers at the firm Bingham McCutchen.
Ornstein, a Roll Call contributing writer, said the case has implications far beyond Jefferson’s own legal and political future.
“This is a real question of legislative integrity in the face of an executive branch that has every interest in intimidating them from time to time,” Ornstein said.
Brand, who served as House general counsel from 1976 to 1983, said Congress must defend itself from intrusions by the executive and judicial branches on its authority.
“I just thought that when you get the four former [House] general counsels all on side, hopefully it adds some weight to the consideration of a longstanding issue that directly affect the House and its Members,” Brand said.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.