The House of Representatives and the Justice Department are in negotiations over new protocols and procedures for law enforcement searches of Congressional offices — talks that began in the wake of the controversial May 2006 raid on Rep. William Jefferson’s (D-La.) Capitol Hill office.
An appeals court has ruled that raid was unconstitutional and the Supreme Court on Monday refused a Justice Department request to reconsider that ruling.
According to House General Counsel Irv Nathan, discussions between the House and DOJ are in “preliminary” stages, but “we have put forward concrete proposals.” Nathan said the goal of the discussions — led by his office and by Assistant Attorney General Alice Fisher — is to produce “either a set of procedures, a memorandum of understanding or perhaps legislation, that would make clear the rules for law enforcement actions in Congressional offices.” Nathan would not set a timetable for the talks, but said he hoped a resolution could be reached this year.
In February testimony before the House Judiciary Committee, Attorney General Michael Mukasey hinted at these discussions, saying that despite the DOJ appeal to the Supreme Court, “we would much prefer to resolve that case in the way that most disputes with respect to privilege and other matters are resolved between Congress and the Justice Department, namely by conversation and accommodation. And, as I understand it, that’s actively under way.”
The Supreme Court decision Monday leaves in place a U.S. Court of Appeals for the District of Columbia Circuit decision that the Justice Department violated the Speech or Debate Clause by reviewing documents in Jefferson’s Congressional office without giving him the opportunity to first assert privilege over documents that might be related to legislative activity.
An aide to Speaker Nancy Pelosi (D-Calif.) said the Supreme Court ruling “gives the executive and legislative branches the time to work out procedures that protect both the interests of law enforcement and the safeguards for Speech or Debate contained in the Constitution.”
The appeals court essentially directed the two sides to work out a deal. “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 matter that also protects the interests of the Executive in law enforcement,” the court wrote in its Aug. 3 ruling. “How that accommodation is to be achieved is best determined by the legislative and executive branches in the first instance.”
The Justice Department asked to the Supreme Court to overturn the appeals court ruling, arguing that the decision was already being used to challenge “searches of other places and a wide range of other investigatory techniques deemed essential to ferreting out corruption by both Members of Congress and persons who deal with them.” Until the Supreme Court overturns that ruling, DOJ argued, “investigations of corruption in the nation’s capital and elsewhere will be seriously and perhaps even fatally stymied.”
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.