|Judge rejects Jefferson request on documents|
He won't delay FBI examination of seized records
Thursday, July 20, 2006
By Bruce Alpert
WASHINGTON -- A federal judge Wednesday refused to revoke his order allowing the FBI to review documents and material taken in a raid of Rep. William Jefferson's Capitol Hill office, saying a delay would hurt the public by postponing a "final outcome" in a criminal investigation of an elected official seeking re-election.
Jefferson's attorneys immediately asked the judge, Chief Washington, D.C., District Court Judge Thomas Hogan, to delay implementation of his latest ruling pending appeal to a three-judge District Court that will be impaneled to hear the case.
The raid, which occurred May 20-21, was the first time in U.S. history that federal investigators have searched a sitting member's congressional office. It was carried out as part of a 16-month probe that has targeted the New Orleans Democrat.
"While the issues in the motion for return of property are indeed serious as they raise constitutional questions dealing with the Separation of Powers doctrine and inter-branch comity, the Court found little support in the law for the position argued in the motion," Hogan wrote in his three-page ruling refusing Jefferson's first request to halt the FBI's examination of the material taken in the search. Jefferson and his lawyers, according to Hogan, failed to demonstrate that the congressman "would be irreparably harmed" by allowing the investigation to continue.
The documents and computer hard drives taken from Jefferson's office will be reviewed by an FBI filter team not involved in the corruption probe and the congressman will have a "full opportunity" to raise claims about any material he believes should be kept from the federal prosecution team based on the Separation of Powers clause or for other reasons, Hogan wrote.
Hogan, who was appointed to the federal bench by President Reagan, said that a stay "would harm the public's interest in a prompt and final outcome of the government's investigation of serious crimes involving a sitting United States congressman running for re-election in November."
Attorney General Alberto Gonzales, who had threatened to quit if President Bush honored requests by Republican and Democratic House leaders to return the search material to Jefferson, has told the FBI to wait until July 27 to review the material. That, in Gonzales' view, would give Jefferson a chance to pursue his request to extend the stay that kept the documents sealed.
If Hogan refuses to stay his latest order, it would be up to the three-judge District Court panel to decide whether to allow the examination of the material to proceed, as requested by the Justice Department, or to stay Hogan's order while the appeals process moves forward.
Carl Tobias, a constitutional law professor at the University of Richmond Law School, said it's unlikely that the three-judge panel would grant a stay. He pointed out that, as noted by Hogan, the legal standards for granting a stay are high, including a "substantial likelihood" of success in appeal.
In addition, the three judges are part of the same District Court in which Hogan serves as the chief judge and are likely to be "somewhat deferential."
On the other hand, Tobias said, the three judges might ultimately decide that the issues are so critical and so unprecedented because they involve the first-ever search of a congressional office, that they could decide a stay would be the wisest court of action.
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Bruce Alpert can be reached at email@example.com or (202) 383-7861.