|Jefferson challenge of search now before judges|
Posted by Washington bureau May 15, 2007 8:04PM
By Bruce Alpert
Washington bureau - NOLA.com
WASHINGTON -- The three judges hearing Rep. William Jefferson's legal challenge to the 2006 search of his congressional office peppered attorneys for Jefferson and the Justice Department with tough questions Tuesday, offering few clues as to how they might decide the historic case.
Douglas Ginsburg, the chief judge for the Washington, D.C., Court of Appeals, expressed concerns about remedies that might add months to the 2-year-old investigation of the New Orleans Democrat, indicating he would like the panel to issue its decision fairly quickly.
At issue is the first-ever federal raid of a sitting congressman's office, in which 15 FBI agents spent 18 hours May 20-21, 2006, collecting records and securing the office's computer hard drives.
The search was conducted as part of a government investigation into allegations that the CEO of iGate Inc., a small Kentucky firm, gave $367,500 to a company controlled by Jefferson's family in return for the congressman's help winning contracts in Western Nigeria. The CEO, Vernon Jackson, is now serving a federal prison term after pleading guilty to bribery-related charges.
Also part of the probe, according to government documents, is whether Jefferson paid bribes to foreign officials to facilitate the contracts, and other business transactions.
The investigation, run out of the U.S. attorney's office in Northern, Va., has not resulted in charges against Jefferson, who has denied all wrongdoing.
Speaking before a packed courtroom, Jefferson's attorney Robert Trout said the search raises issues of high constitutional principle that could have profound impact on legislative independence.
The Constitution and court precedent, Trout said, provides a privilege for legislative materials that is "absolute and can't be violated because the government says 'we have a big criminal case to bring.' "
While the Justice Department said FBI agents were looking for specific materials identified in a search warrant approved by a federal court, Trout said they also examined thousands of pages related to Jefferson's work as a legislator.
And while the search warrant admonished the agents not to reveal any of the legislative material to government prosecutors, or anyone else, Trout said such admonitions are insufficient, given that a serious leak of grand jury material has already occurred. He didn't say what the leak was, but may have been referring to published reports that FBI agents in August 2005, found $90,000 in cash in the freezer of Jefferson's Washington, D.C., home.
"How do we know an FBI agent -- there were 15 agents over 18 hours -- didn't say, 'Hey Joe, get a load of this. This is really interesting,' " Trout said.
Deputy Solicitor General Michael Dreeben, representing the Justice Department, said that the government didn't have any interest in examining legislative records, but rather focused entirely on obtaining evidence of "important crimes," including bribery and corrupt practices. To do as Trout suggested and allow Jefferson to first examine the material and separate documents he considered legislative in nature, would have the effect of giving the congressman "a key to the evidence locker," Dreeben said.
The judges raised questions about both Trout's and Dreeben's arguments.
Ginsburg said it is in the interest of prosecutors not to have any evidence destroyed, and wondered how giving any target of an investigation an opportunity to go through materials before turning them over would impact an investigation. "How can that interest be served?" Ginsburg asked.
He also asked Dreeben whether it's fair to allow the executive branch to decide what materials are legislative and therefore protected, given its interest in obtaining as much evidence as possible.
Ginsburg also didn't buy Dreeben's argument that if the court rules that evidence collected from Jefferson's office is off limits it might also then disallow use of tapes -- both video and audio -- that the government collected as part of its probe of the congressman.
After all, Dreeben argued, it's very likely that in recording conversations involving the congressman they overheard him at some point discussing legislative issues.
"I don't see how that is possible," said Ginsburg, noting that the use of secret video tapes was not successfully challenged during the government's Abscam investigation more than 25 years ago. In that case, members of Congress were videotaped accepting cash from FBI agents pretending to be Arab sheiks.
In the Jefferson probe, according to government documents, FBI agents videotaped a cooperating witness, Virginia businesswoman Lori Mody, handing Jefferson a briefcase with $100,000 in marked $100 bills. The government believed the money was intended to bribe the vice president of Nigeria, according to documents. Instead, FBI agents found all but $10,000 of the money in the freezer of Jefferson's Washington home.
Judge Judith Rogers, the only Democratic appointee on the panel, raised concerns about the way the raid was conducted, without allowing counsel for either Jefferson or the House of Representatives to observe. "The question in my mind is the manner in which it was done," she said.
She asked about recommendations made by former House Speakers Tom Foley, a Democrat, and Newt Gingrich, a Republican, that any search of a congressional office "should not be executed or supervised by an executive branch employee, that the member and counsel should be given the chance to be present during the search and assert privilege about particular documents; and that any document for which the member raises objections be transmitted to a court under seal for review.
In their brief to the appeals court, the former speakers, joined by former Republican House Leader Bob Michel, said this procedure would "not prevent the sealing of the congressional office without prior notice to ensure that no evidence is removed before the search begins."
Dreeben said such a process of relying on a non-Justice Department official to oversee a search presented "constitutional questions."
In his arguments to the court, Trout urged the court to overturn the ruling of Chief District Court Judge Thomas Hogan that the search was proper, declare it unconstitutional, and order the return of all the records.
At the very minimum, Trout said, the court should return the computer hard drives and all the documents that the congressman considers privileged because they deal with legislative issues and concerns protected by the Speech or Debate Clause of the Constitution.
Dreeben said that the court should declare the search constitutional, and allow the Justice Department to assist Judge Hogan as he decides which documents challenged by Jefferson should be kept from prosecutors and which should be turned over for possible use if an indictment is sought against the congressman.
Bruce Alpert can be reached at firstname.lastname@example.org or (202) 383-7861.