In a precedent setting decision released today, the U.S. Court of Appeals for the District of Columbia ruled that the May 20, 2006  FBI’s search of indicted Rep. William Jefferson’s congressional office violated the Constitution’s Speech or Debate Clause. In her concurring opinion, Judge Karen LeCraft  Henderson described the legal question in this case as, “can Executive Branch personnel—here, special agents of the Federal Bureau of Investigation—execute a search warrant directed to the congressional office of a Member of the Congress (Member) without doing violence to the Speech or Debate Clause (Clause) set forth in Article I, Section 6, Clause 1 of the United States Constitution?”

The problem for the FBI wasn’t that they sought a search warrant for Jefferson’s office. The problem came from the way the warrant was executed. The search of Jefferson’s computer for images and key words related to their bribery investigation was legal, but the FBI also searched and copied Jefferson’s papers, which did contain material relating to legislation, and this was deemed unconstitutional. The Speech or Debate Clause says, “For any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” Basically, what happens in Congress stays in Congress.

Because of the way the search was carried out, the court found it had to have violated the Clause. “The search of Congressman Jefferson’s office must have resulted in the disclosure of legislative materials to agents of the Executive. Indeed, the application accompanying the warrant contemplated it. In order to determine whether the documents were responsive to the search warrant, FBI agents had to review all of the papers in the Congressman’s office, of which some surely related to legislative acts. This compelled disclosure clearly tends to disrupt the legislative process: exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process,” the court wrote.

The court ruled that Jefferson should get all the documents that are privileged under the Clause back. “We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause.” This decision isn’t related to Jefferson’s criminal trial, which is slated to begin in January of 2008.

It might seem like common sense that the FBI couldn’t go through a congressperson’s legislative papers in the course of a criminal investigation, but the raid on Jefferson’s office was also unprecedented, so all of the Executive Branch’s actions in this case broke new ground. A ruling in favor of the FBI in this case would have been dangerous because it would have legally provided one branch of government with the ability to view and seize the papers of another. To me, it seems that a ruling in the FBI’s favor could have potentially undermined our system of checks and balances, and limited the ability of a branch of government to communicate independently. This consequence could only be viewed as a threat to our democratic process. The Appeals Court made the obvious and correct ruling here.

Full text of the decision

Jason Easley is the editor of the politics zone at  His news column The Political Universe appears on Tuesdays and Fridays at

Jason can also be heard every Sunday at 7:00 pm (ET) as the host of The Political Universe Radio Show at

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