House leaders appear unlikely to intervene in the appeal by Rep. William Jefferson (D-La.) of a federal judge’s ruling that upheld the May 20 FBI raid on his Congressional office — a dramatic departure from the chamber’s earlier stance in the case.
Leadership sources caution that no final decision has been made on the issue yet. But high-level discussions during the past week between Speaker Dennis Hastert (R-Ill.) and Minority Leader Nancy Pelosi (D-Calif.) have failed to yield an agreement on whether to file a motion supporting Jefferson’s appeal.
Neither side is prepared to weigh in on the Jefferson appeal without support from the other, fearing political attacks accusing them of being soft on corruption. Jefferson is at the center of a federal bribery and corruption probe.
Hastert, Pelosi and other House leaders, through the Bipartisan Legal Advisory Group, filed a motion with Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia in support of Jefferson’s attempt to get all the materials seized by the FBI on May 20. Hogan, who approved the search-warrant application by the FBI for Jefferson’s office, ruled against the Louisiana Democrat and the House leaders last Monday.
Since that time, Jefferson has filed an appeal with the D.C. Circuit Court of Appeals, as well as asking for a stay in the Justice Department’s review of materials confiscated by FBI agents. Jefferson argues that Justice Department officials should be prevented from reviewing those materials, or using them in a criminal prosecution against him, until his appeal has been heard and ruled upon.
The Justice Department, for its part, has sought immediate access to the materials and documents seized during the May 20 raid. Justice officials filed a motion on Thursday with Hogan opposing the stay sought by the Louisiana Democrat.
Attorney General Alberto Gonzales has “directed the FBI to take custody of the [Jefferson] documents, but he has also directed that review of the documents ... not begin for two weeks in order to allow for this Court — and if necessary, the D.C. Circuit — to consider Rep. Jefferson’s arguments for a stay,” federal prosecutors wrote in their motion. “If the Congressman’s motion[s] for stay are denied before the end of the two-week period, the review would begin sooner. If instead a stay is granted, the FBI would of course comply with that order.”
The Bipartisan Leadership Advisory Group has not met to review the latest developments in the Jefferson case. Hastert, in particular, was outraged by the FBI action, complaining personally to President Bush that the Justice Department had overstepped its bounds and violated the separation of powers between the executive and legislative branches, as well as the Speech or Debate Clause, which protects lawmakers and staff from being criminally prosecuted for legislative activities.
Hogan’s ruling, although expected by both leaders due to his own earlier endorsement of the FBI search, has caused new problems for Hastert and Pelosi. While still unhappy about the FBI raid, the two leaders have faced criticism within their own parties for supporting Jefferson’s challenge to the FBI search.
While Hastert and Pelosi’s offices have had some conversations since Hogan handed down his decision, no consensus has been achieved as to whether to file a motion backing Jefferson’s appeal, and several top leadership aides predicted that no such motion will be filed. The entire group of elected leaders on both sides of the aisle that make up BLAG have not been consulted on their views at this point.
“The BLAG has not discussed this yet,” said a GOP leadership aide. “No decision has been made yet.”
A majority vote is required to approve any action by the BLAG.
If the BLAG does not file a motion backing Jefferson’s appeal, then several prominent former lawmakers may be recruited to do so, as well as legal experts familiar with the intricacies of the Speech or Debate Clause and the separation of powers principle, according to House insiders.
House officials and the Justice Department have been holding talks to work out ground rules for future searches of Congressional offices, although those discussions have not yielded an agreement at this time.
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.