United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 2007 Decided August 3, 2007
No. 06-3105
UNITED STATES OF AMERICA,
APPELLEE
v.
RAYBURN HOUSE OFFICE BUILDING,
ROOM 2113, WASHINGTON, D.C. 20515,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06mj00231)
Robert P. Trout argued the cause for appellant. With him
on the briefs were Amy Berman Jackson and Gloria B. Solomon.
James Hamilton and Robert V. Zener were on the brief for
amici curiae Thomas S. Foley, et al. in support of appellant.
Scott Palmer, Elliot S. Berke, Reid Stuntz, and Philip Kiko,
appearing pro se, were on the brief as amici curiae in support of
appellant.
David H. Remes and Richard D. Dietz were on the brief for
amicus curiae Abner J. Mikva in support of appellant and for
reversal.
2
Gregory L. Poe was on the brief for amici curiae Stanley
M. Brand, et al. in support of appellant.
Michael R. Dreeben, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Jeffrey A. Taylor, U.S. Attorney, Darryl Joseffer, Assistant to
the Solicitor General, U.S. Department of Justice, Stephan E.
Oestreicher, Jr. and Charles E. Duross, Attorneys, and Roy W.
McLeese, III, Assistant U.S. Attorney.
Melanie Sloan and Anne L. Weismann were on the brief for
amicus curiae Citizens for Responsibility and Ethics in
Washington supporting affirmance. Daniel J. Popeo, Paul D.
Kamenar, Perry O. Barber were on the brief for amicus curiae
Washington Legal Foundation in support of appellee and urging
affirmance.
Paul J. Orfanedes and Meredith L. Di Liberto were on the
brief for amicus curiae Judicial Watch, Inc. in support of
appellee urging affirmation.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion concurring in the judgment filed by Circuit Judge
HENDERSON.
ROGERS, Circuit Judge: This is an appeal from the denial
of a motion, filed pursuant to Rule 41(g) of the Federal Rules of
Criminal Procedure, seeking the return of all materials seized by
the Executive upon executing a search warrant for non-
legislative materials in the congressional office of a sitting
3
Member of Congress. The question on appeal is whether the
procedures under which the search was conducted were
sufficiently protective of the legislative privilege created by the
Speech or Debate Clause, Article I, Section 6, Clause 1 of the
United States Constitution. Our precedent establishes that the
testimonial privilege under the Clause extends to non-disclosure
of written legislative materials. See Brown & Williamson
Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995).
Given the Department of Justice’s voluntary freeze of its review
of the seized materials and the procedures mandated on remand
by this court in granting the Congressman’s motion for
emergency relief pending appeal, the imaging and keyword
search of the Congressman’s computer hard drives and
electronic media exposed no legislative material to the
Executive, and therefore did not violate the Speech or Debate
Clause, but the review of the Congressman’s paper files when
the search was executed exposed legislative material to the
Executive and accordingly violated the Clause. Whether the
violation requires, as the Congressman suggests, the return of all
seized items, privileged as well as non-privileged, depends upon
a determination of which documents are privileged and then, as
to the non-privileged documents, a balancing of the separation
of powers underlying the Speech or Debate Clause and the
Executive’s Article II, Section 3 law enforcement interest in the
seized materials. The question of whether the seized evidence
must be suppressed under the Fourth Amendment is not before
us.
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. We do not, however, hold, in the
absence of a claim by the Congressman that the operations of his
4
office have been disrupted as a result of not having the original
versions of the non-privileged documents, that remedying the
violation also requires the return of the non-privileged
documents. The Congressman has suggested no other reason
why return of such documents is required pursuant to Rule 41(g)
and, in any event, it is doubtful that the court has jurisdiction to
entertain such arguments following the return of the indictment
against him while this appeal was pending.
I.
On May 18, 2006, the Department of Justice filed an
application for a search warrant for Room 2113 of the Rayburn
House Office Building, the congressional office of Congressman
William J. Jefferson. The attached affidavit of Special Agent
Timothy R. Thibault of the Federal Bureau of Investigation
(“FBI”) described how the apparent victim of a fraud and
bribery scheme who had come forward as a cooperating witness
led to an investigation into bribery of a public official, wire
fraud, bribery of a foreign official, and conspiracy to commit
these crimes. The investigation included speaking with the
Congressman’s staff, one of whom had advised that records
relevant to the investigation remained in the congressional
office. Based on the investigation, the affiant concluded that
there was probable cause to believe that Congressman Jefferson,
acting with other targets of the investigation, had sought and in
some cases already accepted financial backing and or concealed
payments of cash or equity interests in business ventures located
in the United States, Nigeria, and Ghana in exchange for his
undertaking official acts as a Congressman while promoting the
business interests of himself and the targets. Attachments A and
B, respectively, described Room 2113 and the non-legislative
evidence to be seized. The affiant asserted that the Executive
had exhausted all other reasonable methods to obtain these
records in a timely manner.
5
The warrant affidavit also described “special procedures”
adopted by the Justice Department prosecutors overseeing the
investigation. According to the affidavit, these procedures were
designed: (1) “to minimize the likelihood that any potentially
politically sensitive, non-responsive items in the Office will be
seized and provided to the [p]rosecution [t]eam,” Thibault Aff.
¶ 136, and (2) “to identify information that may fall within the
purview of the Speech or Debate Clause privilege, U.S. Const.,
art. I, § 6, cl. 1 or any other pertinent privilege,” id. Essentially,
the procedures called for the FBI agents conducting the search
to “have no substantive role in the investigation” and upon
reviewing and removing materials from Room 2113, not to
reveal politically sensitive or non-responsive items
“inadvertently seen . . . during the course of the search.” Id. ¶¶
137-38. The FBI agents were to review and seize paper
documents responsive to the warrant, copy all electronic files on
the hard drives or other electronic media in the Congressman’s
office, and then turn over the files for review by a filter team
consisting of two Justice Department attorneys and an FBI
agent. Id. ¶ 139. The filter team would determine: (1) whether
any of the seized documents were not responsive to the search
warrant, and return any such documents to the Congressman;
and (2) whether any of the seized documents were subject to the
Speech or Debate Clause privilege or other privilege. Materials
determined to be privileged or not responsive would be returned
without dissemination to the prosecution team. Materials
determined by the filter team not to be privileged would be
turned over to the prosecution team, with copies to the
Congressman’s attorney within ten business days of the search.
Materials determined by the filter team to be potentially
privileged would, absent the Congressman’s consent to
Executive use of a potentially privileged document, be
submitted to the district court for review, with a log and copy of
such documents provided to the Congressman’s attorney within
20 business days of the search. The filter team would make
6
similar determinations with respect to the data on the copied
computer hard drives, following an initial electronic screening
by the FBI’s Computer Analysis and Response Team.
The district court found probable cause for issuance of the
search warrant and signed it on May 18, 2006, directing the
search to occur on or before May 21 and the U.S. Capitol Police
to “provide immediate access” to Room 2113. Beginning on
Saturday night, May 20, more than a dozen FBI agents spent
about 18 hours in Room 2113. The FBI agents reviewed every
paper record and copied the hard drives on all of the computers
and electronic data stored on other media in Room 2113. The
FBI agents seized and carried away two boxes of documents and
copies of the hard drives and electronic data. According to the
brief for the Executive, the Office of the Deputy Attorney
General directed an immediate freeze on any review of the
seized materials. See Appellee’s Br. at 10.
On May 24, 2006, Congressman Jefferson challenged the
constitutionality of the search of his congressional office and
moved for return of the seized property pursuant to FED. R.
CRIM. P. 41(g). He argued, inter alia, that the issuance and
execution of the search warrant violated the Speech or Debate
Clause and sought an order enjoining FBI and Justice
Department review or inspection of the seized materials. The
following day, the President of the United States directed the
Attorney General, acting through the Solicitor General, to
preserve and seal the records and to make sure no use was made
of the materials and that no one had access to them; this
directive would expire on July 9, 2006.
On July 10, 2006, the district court denied the
Congressman’s motion for return of the seized materials.
Concluding that execution of the warrant “did not impermissibly
interfere with Congressman Jefferson’s legislative activities,”
7
In re Search of the Rayburn House Office Bldg. Room No. 2113
Washington, D.C. 20515, 432 F. Supp. 2d 100, 113 (D.D.C.
2006), the district court noted that the warrant sought only
materials that were outside of the “legitimate legislative sphere,”
id. The district court rejected the Congressman’s claim that he
had a right to remove documents he deemed privileged before
execution of the warrant, reasoning that although “some
privileged material was incidently captured by the search” and
was subject to “incidental review,” “the preconditions for a
properly administered warrant that seeks only unprivileged
material that falls outside the sphere of legitimate legislative
activity are sufficient to protect against” undue Executive
intrusion. Id. at 114. The Justice Department, therefore, could
regain custody of the seized materials and resume review as of
July 10, 2006. See id. at 119. On July 11, 2006, Congressman
Jefferson filed a notice of appeal and a motion for a stay pending
appeal. According to the brief for the Executive, the Attorney
General ordered the FBI to regain custody of the seized
materials and imposed an immediate freeze on any review until
the district court and this court considered the Congressman’s
request for a stay pending appeal. See Appellee’s Br. at 13. The
district court denied a stay on July 19, 2006. See In re Search of
the Rayburn House Office Bldg. Room No. 2113, Washington,
D.C. 20515, 434 F. Supp. 2d 3 (D.D.C. 2006).
This court, upon consideration of the Congressman’s
emergency motion for a stay pending appeal filed on July 20,
2006, enjoined the United States, acting through the Executive,
from resuming its review of the seized materials. See Order of
July 25, 2006. Three days later, the court remanded the record
to the district court to make findings regarding “which, if any,
documents (physical or electronic) removed . . . from [the]
Congressman[’s] . . . office pursuant to a search warrant
executed on May 20, 2006, are records of legislative acts.”
Order of July 28, 2006 (“Remand Order”). The court instructed
8
the district court to: (1) copy and provide the copies of all the
seized documents to the Congressman; (2) “using the copies of
computer files made by [the Executive], search for the terms
listed in the warrant, and provide a list of responsive records to
Congressman Jefferson”; (3) provide the Congressman an
opportunity to review the records and, within two days, to
submit, ex parte, any claims that specific documents are
legislative in nature; and (4) “review in camera any specific
documents or records identified as legislative and make findings
regarding whether the specific documents or records are
legislative in nature.” Remand Order at 1. In the meantime, the
court enjoined the Executive from reviewing any of the seized
documents pending further order of this court. Subsequently,
the court allowed the Executive to review seized materials that
the Congressman “has conceded on remand are not privileged
under the Speech or Debate Clause.” Order of Nov. 14, 2006.
The court ordered expedition of this appeal, id., and oral
argument was heard on May 15, 2007.
On June 4, 2007, the grand jury returned a sixteen-count
indictment against Congressman Jefferson in the Eastern District
of Virginia. United States v. Jefferson, No. 07-0209 (E.D. Va.
indictment filed June 4, 2007). The indictment included charges
of racketeering, solicitation of (and conspiracy to solicit) bribes,
money laundering, wire fraud, and obstruction of justice.1 Trial
1
The indictment charged: Count 1, Conspiracy to Solicit
Bribes by a Public Official, Deprive Citizens of Honest Services by
Wire Fraud, and Violate the Foreign Corrupt Practices Act, 18 U.S.C.
§ 371; Count 2, Conspiracy to Solicit Bribes by a Public Official,
Deprive Citizens of Honest Services by Wire Fraud, id. § 371; Counts
3 & 4, Solicitation of Bribes by a Public Official, id. § 201(b)(2)(A);
Counts 5 to 10, Scheme to Deprive Citizens of Honest Services by
Wire Fraud, id. §§ 1343 and 1346; Count 11, Foreign Corrupt
Practices Act, 15 U.S.C. § 78dd-2(a); Counts 12-14, Money
9
is scheduled to begin with jury selection in January 2008. This
court’s jurisdiction of the Congressman’s appeal rests on the
collateral order doctrine. See United States v. Rostenkowski, 59
F.3d 1291, 1296-1300 (D.C. Cir. 1995). Neither party suggests
that the return of the indictment divests this court of jurisdiction
or renders this appeal moot or urges that the court not proceed
to decide this appeal.2 Cf. In re 3021 6th Ave. N., Billings, MT
v. United States, 237 F.3d 1039, 1041 (9th Cir. 2001). We
agree, for the Executive retains in its possession seized
materials, including complete copies of every computer hard
drive in Room 2113, which contain legislative material.3 See
City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000); see also
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of
State, 74 F.3d 1308, 1311 (D.C. Cir.), vacated on other grounds,
519 U.S. 1 (1996). Letting the district court’s decision stand
until after the Congressman’s trial would, if the Congressman is
correct, allow the Executive to review privileged material in
violation of the Speech or Debate Clause.
II.
The Speech or Debate Clause provides that “for any Speech
or Debate in either House, [Members of Congress] shall not be
questioned in any other Place.” U.S. CONST. art. I, § 6, cl. 1.
The version of the Clause adopted by the Founders closely
resembles the language adopted in the English Bill of Rights of
Laundering, 18 U.S.C. § 1957; Count 15, Obstruction of Justice, 18
U.S.C. § 1512(c)(1); Count 16, Racketeer Influenced Corrupt
Organization, Pattern of Racketeering Activity (RICO), id. § 1962(c).
2
See Letter from Roy W. McLeese III, Assistant United
States Attorney, to Mark J. Langer, Clerk (June 7, 2007); Letter from
Robert P. Trout, Esquire, to Mark J. Langer, Clerk (June 11, 2007).
3
Letter from Robert P. Trout, supra note 2.
10
1689, which came out of the long struggle for governmental
supremacy between the English monarchs and the Parliament,
during which the criminal and civil law were used to intimidate
legislators. By the time of the Constitutional Convention, the
privilege embodied in the Speech or Debate Clause was
“recognized as an important protection of the independence and
integrity of the legislature,” United States v. Johnson, 383 U.S.
169, 178 (1966), and was to serve as a protection against
possible “prosecution by an unfriendly executive and conviction
by a hostile judiciary,” id. at 179.
In defining the protections afforded by the Clause, the
Supreme Court has limited the scope to conduct that is an
integral part of “the due functioning of the legislative process.”
United States v. Brewster, 408 U.S. 501, 513 (1972). The
Congressman does not dispute that congressional offices are
subject to the operation of the Fourth Amendment and thus
subject to a search pursuant to a search warrant issued by the
federal district court. The Executive acknowledges, in
connection with the execution of a search warrant, that there is
a role for a Member of Congress to play in exercising the
Member’s rights under the Speech or Debate Clause. The
parties disagree on precisely when that should occur and what
effect any violation of the Member’s Speech or Debate rights
should have. The Congressman contends that the exercise of his
privilege under the Clause must precede the disclosure of the
contents of his congressional office to agents of the Executive
and that any violation of the privilege requires return of all of
the seized materials. The Executive offers that the special
procedures described in the warrant affidavit “are more than
sufficient to protect Rep[resentative] Jefferson’s rights . . . under
the Clause,” Appellee’s Br. at 15-16, and that any violation of
the privilege does not deprive the Executive of the right to retain
all non-privileged materials within the scope of the search
warrant.
11
The Supreme Court has not spoken to the precise issue at
hand. May 20-21, 2006 was the first time a sitting Member’s
congressional office has been searched by the Executive. The
Court has made clear, however, in the context of a grand jury
investigation, that “[t]he Speech or Debate Clause was designed
to assure a co-equal branch of the government wide freedom of
speech, debate, and deliberation without intimidation or threats
from the Executive Branch.” Gravel v. United States, 408 U.S.
606, 616 (1972). Although in Gravel the Court held that the
Clause embraces a testimonial privilege, id. at 616, to date the
Court has not spoken on whether the privilege conferred by the
Clause includes a non-disclosure privilege. However, this court
has.
Beginning with the observation that the prohibition in the
Speech or Debate Clause is “deceptively simple,” this court held
in Brown & Williamson, 62 F.3d at 415, that the Clause includes
a non-disclosure privilege, id. at 420. Noting that the purpose
of the Speech or Debate Clause is “‘to insure that the legislative
function the Constitution allocates to Congress may be
performed independently,’ without regard to the distractions of
private civil litigation or the periods of criminal prosecution,” id.
at 415 (quoting Eastland v. U.S. Servicemen’s Fund, 421 U.S.
491, 502 (1975)), the court rejected the view that the testimonial
immunity of the Speech or Debate Clause applies only when
Members or their aides are personally questioned:
Documentary evidence can certainly be as revealing as
oral communications – even if only indirectly when, as
here, the documents in question . . . do not detail
specific congressional actions. But indications as to
what Congress is looking at provide clues as to what
Congress is doing, or might be about to do — and this
is true whether or not the documents are sought for the
purpose of inquiring into (or frustrating) legislative
12
conduct or to advance some other goals . . . . We do
not share the Third Circuit’s conviction that
democracy’s “limited toleration for secrecy” is
inconsistent with an interpretation of the Speech or
Debate Clause that would permit Congress to insist on
the confidentiality of investigative files.
Id. at 420. As “[d]iscovery procedures can prove just as
intrusive”as naming Members or their staffs as parties to a suit,
id. at 418 (italics omitted), the court held that “[a] party is no
more entitled to compel congressional testimony — or
production of documents — than it is to sue congressmen, “ id.
at 421. Further, the court noted, citing Eastland, 421 U.S. at
509, that when the privilege applies it is absolute. Brown &
Williamson, 62 F.3d at 416. As such, “if the touchstone is
interference with legislative activities,” then “the nature of the
use to which documents will be put — testimonial or evidentiary
— is immaterial.” Id. at 421. In the same vein, the court
indicated that the degree of disruption caused by probing into
legislative acts is immaterial, id. at 419; see also MINPECO,
S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 860 (D.C.
Cir. 1988).
Thus, our opinion in Brown & Williamson makes clear that
a key purpose of the privilege is to prevent intrusions in the
legislative process and that the legislative process is disrupted
by the disclosure of legislative material, regardless of the use to
which the disclosed materials are put. See 62 F.3d at 419. The
bar on compelled disclosure is absolute, see Eastland, 421 U.S.
at 503, and there is no reason to believe that the bar does not
apply in the criminal as well as the civil context. The Executive
does not argue otherwise; the search warrant sought only
materials not protected by the Speech or Debate Clause.
Although Brown & Williamson involved civil litigation and the
documents being sought were legislative in nature, the court’s
13
discussion of the Speech or Debate Clause was more profound
and repeatedly referred to the functioning of the Clause in
criminal proceedings. See, e.g., Brown & Williamson, 62 F.3d
at 416.4
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 Executive and the district court appear to have
proceeded on the premise that the scope of the privilege narrows
when a search warrant is at issue. In the district court’s view,
the Speech or Debate Clause was not implicated by execution of
the search warrant because a seizure of documents did not
4
The court also acknowledged that the Supreme Court’s
“sensitivities” in Gravel, 408 U.S. 614, “to the existence of criminal
proceedings against persons other than Members of Congress at least
suggest that the testimonial privilege might be less stringently applied
when inconsistent with a sovereign interest.” Brown & Williamson,
62 F.3d at 419-20. As we note below, this possibility is not applicable
to the present case.
14
involve a testimonial element. See Rayburn, 432 F. Supp. 2d at
111-12. Both also emphasized that the search warrant sought
only non-privileged materials as a basis for distinguishing
Brown & Williamson, and looked to the procedural protections
afforded by the issuance of a valid search warrant available only
in criminal investigations as eliminating any threat to
Congress’s capacity to function effectively. Our concurring
colleague takes much the same approach, failing to distinguish
between the lawfulness of searching a congressional office
pursuant to a search warrant and the lawfulness of the manner in
which the search is executed in view of the protections afforded
against compelled disclosure of legislative materials by the
Speech or Debate Clause. The considerations voiced by our
concurring colleague and the district court may demonstrate
good faith by the Executive, but they fail to adhere to this
court’s interpretation of the scope of the testimonial privilege
under the Speech or Debate Clause, much less to the Supreme
Court’s interpretation of what constitutes core legislative
activities, see Brewster, 408 U.S. at 526, and the history of the
Clause. While the Executive characterizes what occurred as the
“incidental review of arguably protected legislative materials,”
Appellee’s Br. at 15, it does not deny that compelled review by
the Executive occurred, nor that it occurred in a location where
legislative materials were inevitably to be found, nor that some
impairment of legislative deliberations occurred.
Reliance by the Executive and the district court on Zurcher
v. Stanford Daily, 436 U.S. 547, 566-67 (1978), is misplaced.
There, the Supreme Court rejected the argument that the First
Amendment imposed a bar to third-party search warrants absent
a prior opportunity by the press to litigate the state’s entitlement
to the material before it is turned over or seized. However, in
Zurcher, the Supreme Court did not address whether a particular
search was invalid because it was unconstitutional in its design
and implementation; nor did it involve a privilege that
15
absolutely shields records from non-voluntary disclosure.
Contrary to the Executive’s understanding on appeal, it is
incorrect to suggest that Congressman Jefferson’s position is
that he was entitled to prior notice of the search warrant before
its execution, without regard to the Executive’s interests in law
enforcement. The Congressman makes clear in his brief that he
is not suggesting advance notice is required by the Constitution
before Executive agents arrive at his office. See Appellant’s Br.
at 36. Rather he contends legislative and executive interests can
be accommodated without such notice, as urged, for example by
the Deputy Counsel to the House of Representatives: “We’re not
contemplating advance notice to the [M]ember to go into his
office to search his documents before anyone shows up,” but
rather that “[t]he Capitol [P]olice would seal the office so that
nothing would go out of that office and then the search would
take place with the [M]ember there.” Tr. of Hr’g, June 16,
2006, at 35; see Appellant’s Br. at 36. Neither does the
Congressman maintain that the Speech or Debate Clause
protects unprivileged evidence of unprivileged criminal conduct.
Nor has the Congressman argued that his assertions of privilege
could not be judicially reviewed, only that the warrant
procedures in this case were flawed because they afforded him
no opportunity to assert the privilege before the Executive
scoured his records. See Appellant’s Br. at 37.
The special procedures outlined in the warrant affidavit
would not have avoided the violation of the Speech or Debate
Clause because they denied the Congressman any opportunity
to identify and assert the privilege with respect to legislative
materials before their compelled disclosure to Executive agents.
Indeed, the Congressman, his attorney, and counsel for the
House of Representatives were denied entry into Room 2113
once the FBI arrived. The special procedures described in the
warrant affidavit called for review by FBI agents and the several
members of the Justice Department filter team before the
16
Congressman would be afforded an opportunity to identify
potentially privileged materials. This procedure is significantly
different even from those the Executive has on occasion
afforded to other privileges not protected in the Constitution; for
example, in United States v. In Re: Search of Law Office, 341
F.3d 404, 407 (5th Cir. 2003), the privilege holder was allowed
an opportunity to identify documents protected under the
attorney-client privilege at the point the search was completed.
Although the Supreme Court in Weatherford v. Bursey, 429 U.S.
545, 558 (1977), distinguished between the receipt of privileged
information by an agent of the Executive and by the prosecution
team in the context of a civil rights claim based on a Sixth
Amendment violation, the nature of the considerations presented
by a violation of the Speech or Debate Clause is different. If the
testimonial privilege under the Clause is absolute and there is no
distinction between oral and written materials within the
legislative sphere, then the non-disclosure privilege for written
materials described in Brown & Williamson, 62 F.3d at 421, is
also absolute, and thus admits of no balancing, cf. United States
v. Nixon, 418 U.S. 683 (1974); Moody v. IRS, 654 F.2d 795, 799
(D.C. Cir. 1981). The compelled disclosure of legislative
materials to FBI agents executing the search warrant was not
unintentional but deliberate — a means to uncover responsive
non-privileged materials.
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 manner that also protects the
interests of the Executive in law enforcement. To the extent the
Executive expresses concern about the burdens placed upon the
district court and attendant delay during judicial review of
seized materials, the Remand Order illustrates a streamlined
approach by narrowing the number of materials the district court
may be required to review. The historical record utterly devoid
of Executive searches of congressional offices suggests the
17
imposition of such a burden will be, at most, infrequent.
Regardless of whether the accommodation is by initially sealing
the office to be searched before the Member is afforded an
opportunity to identify potentially privileged legislative
materials prior to any review by Executive agents or by some
other means, seriatim initial reviews by agents of the Executive
of a sitting Member’s congressional office are inconsistent with
the privilege under the Clause. How that accommodation is to
be achieved is best determined by the legislative and executive
branches in the first instance.5 Although the court has
acknowledged, where it is not a Member who is subject to
criminal proceedings, that the privilege might be less stringently
applied when inconsistent with a sovereign interest, see Brown
& Williamson, 62 F.3d at 419-20; supra note 4, this observation
has no bearing here and is relevant, if at all, to the question of
remedy for a violation, not the determination of whether a
violation has occurred.
Accordingly, we hold that a search that allows agents of the
Executive to review privileged materials without the Member’s
consent violates the Clause. The Executive’s search of the
Congressman’s paper files therefore violated the Clause, but its
copying of computer hard drives and other electronic media is
constitutionally permissible because the Remand Order affords
the Congressman an opportunity to assert the privilege prior to
disclosure of privileged materials to the Executive; the
5
See Amicus Br. of Hon. Abner J. Mikva at 18; Amicus Br.
of Scott Palmer, Elliot S. Berke, Reid Stuntz, and Philip Kiko (former
senior congressional staffers) at 26. Compare Amicus Br. of Thomas
S. Foley, Newt Gingrich and Robert H. Michel (former Speakers of
the U.S. House of Representatives) at 27-30 (suggesting specific
alternative procedures for search of congressional offices); Amicus Br.
of Stanley M. Brand et al. (former counsel to the U.S. House of
Representatives and the Senate and scholars) at 28-29 (same).
18
Executive advises, see Appellee’s Br. at 14, 62-63, that no FBI
agent or other Executive agent has seen any electronic document
that, upon adjudication of the Congressman’s claim of privilege,
may be determined by the district court to be privileged
legislative material.
III.
The question remains what the appropriate remedy is under
Rule 41(g) for a violation of the Speech or Debate Clause. The
1989 Advisory Committee Notes to Rule 41(e)6 state:
No standard is set forth . . . to govern the determination
of whether property should be returned to a person
aggrieved either by an unlawful seizure or by
deprivation of the property . . . . If the United States
has a need for the property in an investigation or
prosecution, its retention of the property generally is
reasonable. But, if the United States’ legitimate
interests can be satisfied even if the property is
returned, continued retention of the property would
become unreasonable.
(emphasis added). Our task is to determine how to reconcile the
scope of the protection that is afforded to a Member of Congress
under the Speech or Debate Clause with the Executive’s Article
II responsibilities for law enforcement.
Clearly a remedy in this case must show particular respect
to the fact that the Speech or Debate Clause “reinforces the
6
As a result of the 2002 Amendments, Rule 41(e) now
appears with minor stylistic changes as Rule 41(g). United States v.
Albinson, 356 F.3d 278, 279 n.1 (3d Cir. 2004).
19
separation of powers and protects legislative independence.”
Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 8 (D.C.
Cir. 2006) (en banc) (collecting cases). Congressman Jefferson
argued in the district court that he has suffered irreparable harm
with no adequate remedy available at law because the violation
of his constitutional rights cannot be vindicated by an action at
law or damages or any other traditional relief.7 On appeal,
however, the Congressman makes no claim that the functioning
of his office has been impaired by loss of access to the original
versions of the seized documents; the Remand Order directed
that he be given copies of all seized documents. Remand Order
of July 28, 2007. Perhaps more to the point, however, he
contends that complete return of all seized materials is the only
remedy that vindicates the separation of powers principles
underlying the Speech or Debate Clause and serves as an
appropriate deterrent to future violations.
Although the search of Congressman Jefferson’s paper files
violated the Speech or Debate Clause, his argument does not
support granting the relief that he seeks, namely the return of all
seized documents, including copies, whether privileged or not.
Taking his assertions in reverse order, such relief is unnecessary
to deter future unconstitutional acts by the Executive. There is
no indication that the Executive did not act based on a good faith
interpretation of the law, as reflected in the district court’s prior
7
See In Re: Search of Law Office, 341 F.3d at 414 & n.49
(holding that district court must find “at the very least, a substantial
showing of irreparable harm” in order to suppress seized evidence
under Rule 41(e), citing G.M. Leasing Corp. v. United States, 429
U.S. 338, 359-60 (1977)); Ramsden v. United States, 2 F.3d 322, 325
(9th Cir. 1993) (“agree[ing] with the Fifth, Eighth, and Tenth Circuits
that a district court must determine whether a movant will suffer
irreparable injury when considering whether to reach the merits of a
preindictment Rule 41(e) motion”).
20
approval and later defense of the special procedures set forth in
the warrant affidavit. While the Fourth Amendment issue is not
before us, the Supreme Court’s instruction in United States v.
Leon, 468 U.S. 897 (1984), is relevant to the extent the
Congressman invokes deterrence as a rationale for the remedy
he seeks under Rule 41(g). In addressing application of the
exclusionary rule in the context of the Fourth Amendment, the
Supreme Court pointed out in Leon that “[p]articularly when law
enforcement officers have acted in objective good faith [on a
warrant issued by a neutral magistrate] or their transgressions
have been minor,” the possible benefit from exclusion, in terms
of future deterrence, is limited, 468 U.S. at 907-08.
Additionally, with respect to concern about future actions by the
Executive, this is the only time in this Nation’s history that the
Executive has searched the office of a sitting Member of
Congress. Our holding regarding the compelled disclosure of
privileged documents to agents of the Executive during the
search makes clear that the special procedures described in the
warrant affidavit are insufficient to protect the privilege under
the Speech or Debate Clause. This too should ameliorate
concerns about deterrence.
At the same time, the remedy must give effect not only to
the separation of powers underlying the Speech or Debate
Clause but also to the sovereign’s interest under Article II,
Section 3 in law enforcement. The following principles govern
our conclusion. The Speech or Debate Clause protects against
the compelled disclosure of privileged documents to agents of
the Executive, but not the disclosure of non-privileged materials.
Its “shield does not extend beyond what is necessary to preserve
the integrity of the legislative process,” Brewster, 408 U.S. at
517, and it “does not prohibit inquiry into illegal conduct simply
because it has some nexus to legislative functions,” id. at 528.
This particular search needlessly disrupted the functioning of the
Congressman’s office by allowing agents of the Executive to
21
view legislative materials without the Congressman’s consent,
even though a search of a congressional office is not prohibited
per se. Still, the Congressman makes no claim in his brief,
much less any showing, that the functioning of his office has
been disrupted as a result of not having possession of the
original versions of the non-privileged seized materials. Most
important, to construe the Speech or Debate Clause as providing
an absolute privilege against a seizure of non-privileged
materials essential to the Executive’s enforcement of criminal
statutes pursuant to Article II, Section 3 on no more than a
generalized claim that the separation of powers demands no less
would, as the Supreme Court has observed, albeit as to a
qualified privilege, “upset the constitutional balance of ‘a
workable government.’” Nixon, 418 U.S. at 707 (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring)). The Supreme Court has
instructed that the Clause is to be applied “in such a way as to
insure the independence of the legislature without altering the
historic balance of the three co-equal branches of Government.”
Brewster, 408 U.S. at 508; see Fields, 459 F.3d at 9.
Applying these principles, we conclude that the
Congressman is entitled, as the district court may in the first
instance determine pursuant to the Remand Order, to the return
of all materials (including copies) that are privileged legislative
materials under the Speech or Debate Clause. Where the Clause
applies its protection is absolute. For the reasons stated, absent
any claim of disruption of the congressional office by reason of
lack of original versions, it is unnecessary to order the return of
non-privileged materials as a further remedy for the violation of
the Clause. The Congressman has suggested no other reason
why return of the non-privileged documents is required pursuant
to Rule 41(g), and, in any event, it is doubtful that the court has
jurisdiction to entertain such arguments following the return of
the indictment. Unlike the Congressman’s request for the return
22
of legislative materials protected by the Speech or Debate
Clause, the further claim for the return of all non-privileged
materials is not independent of the criminal prosecution against
him, especially if the legality of the search will be a critical issue
in the criminal trial. See In re 3021 6th Ave. N., 237 F.3d at
1041 (citing DiBella v. United States, 369 U.S. 121, 131-32
(1962)); In re Search of the Premises Known as 6455 South
Yosemite, 897 F.2d 1549, 1554-56 (10th Cir. 1990); United
States v. Mid-States Exchange, 815 F.2d 1227, 1228 (8th Cir.
1987) (per curiam). We agree with the Ninth Circuit’s holding
that the 1989 amendment to Rule 41, eliminating the coupling
of a motion for the return of property under Rule 41 and a
motion to exclude evidence at trial, FED. R. CRIM. P. 41(g), does
not affect DiBella’s controlling force, which balanced the
individual and government interests and their relationship to
trial delays or disruptions, 369 U.S. at 124, 126, 129; see, e.g.,
In re 3021 6th Ave. N., 237 F.3d at 1041. See generally 15B
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 3918.4 (2d ed.
1992). Although the Congressman’s further request is solely for
the return of property, his Rule 41(g) motion is “tied to a
criminal prosecution in esse against the movant,” DiBella, 369
U.S. at 132; it is of no moment that the indictment was filed in
another district, id. The fact that the prosecution has
commenced “will afford . . . adequate opportunity to challenge
the constitutionality of the search of his . . . office,” and hence
“there is now no danger that the [Executive] might retain [the
Congressman’s] property indefinitely without any
opportunity . . . to assert on appeal his right to possession”;
hence there is “no basis upon which to grant piecemeal review
of [his further] claim [for non-privileged materials].” United
States v. Search Warrant for 405 N. Wabash, Suite 3109, 736
F.2d 1174, 1176 (7th Cir. 1984).
Accordingly, we hold that the Congressman is entitled to
23
the return of all legislative materials (originals and copies) that
are protected by the Speech or Debate Clause seized from
Rayburn House Office Building Room 2113 on May 20-21,
2006. Further, as contemplated by the warrant affidavit, see
Thibault Aff. ¶¶ 137-38, the FBI agents who executed the search
warrant shall continue to be barred from disclosing the contents
of any privileged or “politically sensitive and non-responsive
items,” id. ¶ 138, and they shall not be involved in the pending
prosecution or other charges arising from the investigation
described in the warrant affidavit other than as regards
responsiveness, id.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the
judgment:
When all of the brush is cleared away, this case presents a
simple question: 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?1 The limited United States
Supreme Court precedent regarding the applicability of the
Clause in the criminal context makes one thing clear—the
Clause “does not purport to confer a general exemption upon
Members of Congress from liability or process in criminal
cases. Quite the contrary is true.” Gravel v. United States, 408
U.S. 606, 626 (1972) (emphasis added). It appears that neither
the Supreme Court nor any inferior court has addressed the
question as I view it and the single holding from our court on
which the majority almost exclusively relies to answer the
question in the negative decides only the Clause’s applicability
to a civil subpoena obtained by private parties who sought
certain files in the possession of a congressional subcommittee.
See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d
408 (D.C. Cir. 1995) (Clause barred enforcement of subpoenas
duces tecum issued to two members of House Subcommittee on
Health and Environment); Maj. Op. at 11–13 (relying on Brown
& Williamson because “[t]he Supreme Court has not spoken”).2
1
The Clause provides that “for any Speech or Debate in either
House” “[t]he Senators and Representatives” “shall not be questioned
in any other Place.” U.S. Const. Art. I, § 6, cl. 1 (emphases added).
2
Contrary to the majority’s assertion that “[t]he Executive does not
argue” that the Clause’s “bar on compelled disclosure” “does not
apply in the criminal as well as the civil context,” Maj. Op. at 12, the
government expressly argues that “[t]he execution of a search warrant
2
But Brown & Williamson’s brief comments regarding the Clause
in the criminal context—which comments importantly
acknowledge the Clause’s less categorical scope in that
context3—remain dicta no matter how “profound.” Maj. Op. at
13. I believe the question can be directly answered “yes”
without resort to dicta or any other indirect support or theory.
Accordingly, while I concur in the judgment which affirms the
district court’s denial of Representative William J. Jefferson’s
(Rep. Jefferson) Rule 41(g) motion, I do not agree with the
majority’s reasoning and distance myself from much of its dicta.
The Supreme Court has made clear that the two elements of
the privilege—“Speech or Debate” and “question[ing]”—must
“be read broadly to effectuate its purposes.” United States v.
Johnson, 383 U.S. 169, 180 (1966). As our court has noted, the
“touchstone” of the Clause “is interference with legislative
activities,” see Brown & Williamson, 62 F.3d at 421; the Clause
is therefore “designed to protect Congressmen ‘not only from
the consequences of litigation’s results but also from the burden
of defending themselves’ ” for their legislative actions, Helstoski
v. Meanor, 442 U.S. 500, 508 (1979) (quoting Dombrowski v.
Eastland, 387 U.S. 82, 85 (1967)); see also Johnson, 383 U.S.
. . . is far removed from the core concerns animating the Clause,”
Appellee’s Br. at 44, and therefore “the protections of the Clause . . .
cannot extend to precluding search warrants,” id. at 45. With respect
to our precedent, moreover, the government asserts that “Brown &
Williamson itself distinguished between civil subpoenas and criminal
proceedings, and limited its holding to the former.” Id. at 47. Finally,
the government repeatedly emphasizes the consequences for law
enforcement if a non-disclosure rule is recognized in the criminal
context. See id. at 37–38.
3
See infra pp. 10–11.
3
at 179 (Clause “protect[s] [the legislature] against possible
prosecution by an unfriendly executive and conviction by a
hostile judiciary”). Still, the “speech or debate privilege was
designed to preserve legislative independence, not supremacy.”
United States v. Brewster, 408 U.S. 501, 508 (1972) (emphasis
added).
There is no dispute that the issuance of the search warrant
for Rep. Jefferson’s congressional office does not violate the
Clause. See Maj. Op. at 10. The “Speech or Debate” protected
by the Constitution includes only “legitimate legislative
activity,” see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376
(1951), and “[t]aking a bribe is, obviously, no part of the
legislative process or function; it is not a legislative act,”
Brewster, 408 U.S. at 526. Here, the warrant sought only
“fruits, instrumentalities and evidence of violations of” various
federal bribery and fraud statutes involving Rep. Jefferson,4 see
Warrant Aff., reprinted in Joint Appendix (JA) at 7; Sealed
Appendix (SA) 18–25, which plainly are outside the bounds of
protected legislative activities, see Brewster, 408 U.S. at 526.
Having found “probable cause to believe that” Rep. Jefferson’s
congressional office “contains property constituting evidence of
the commission of . . . bribery of a public official, . . . wire
fraud[,] . . . bribery of a foreign official . . . [and] conspiracy to
commit” these crimes and having issued a search warrant aimed
solely at such evidence, see Warrant Aff. at JA 87–88 (internal
citations omitted), the district court ensured that the warrant
encompassed only unprivileged records. And it is, of course, the
4
They include 18 U.S.C. § 201 (bribery of public official), 18
U.S.C. §§ 1343, 1346 and 1349 (wire fraud and deprivation of honest
services), 15 U.S.C. §§ 78dd-1 et seq. (bribery of foreign official) and
18 U.S.C. § 371 (conspiracy to commit bribery, wire fraud and bribery
of foreign official). See Warrant Aff. at JA 7.
4
judiciary, not the executive or legislature, that delineates the
scope of the privilege. See United States v. Nixon, 418 U.S. 683,
703–04 (1974) (citing Speech or Debate Clause cases to
illustrate judicial power to define scope of executive privilege);
cf. In re Search of Rayburn House Office Bldg. Room No. 2113
(Rayburn), 432 F. Supp. 2d 100, 116 (D.D.C. 2006) (“A federal
judge is not a mere rubber stamp in the warrant process, but
rather an independent and neutral official sworn to uphold and
defend the Constitution.”).
Notwithstanding the search warrant sought only unprivileged
records, Rep. Jefferson’s congressional office, as the warrant
itself manifests,5 also contained records, paper and electronic, of
legislative acts to which the Clause’s protection extends.
Execution of the warrant necessarily required the FBI agents to
separate unprivileged responsive records from privileged records
of legislative acts. It is this aspect of the warrant’s execution
that Rep. Jefferson claims violated the Clause because it
constituted impermissible “question[ing]” of him.
5
The warrant includes “special procedures in order to minimize the
likelihood that any potentially politically sensitive, non-responsive
items in the Office will be seized” by “identify[ing] information that
may fall within the purview of the Speech or Debate Clause . . . or any
other pertinent privilege.” Warrant Aff. at JA 79; see also id. at JA
80–87 (directing search team to seize only records responsive to
warrant and to provide potentially privileged records to Rep. Jefferson
and to district court to determine privilege vel non); Search Warrant
(May 21, 2006), reprinted in JA at 3 (incorporating Warrant Affidavit
by reference).
5
See Appellant’s Br. at 13–22; U.S. Const. Art. I, § 6, cl. 1. I
disagree.6
The execution of a valid search warrant is an “exercise of
executive power,” United States v. Grubbs, 126 S. Ct. 1494,
1501 (2006) (internal quotation omitted), and, as noted, the
Supreme Court has made clear that the Clause “does not purport
to confer a general exemption upon Members of Congress” from
criminal process, Gravel, 408 U.S. at 626.7 Nevertheless, my
6
The majority is incorrect in suggesting that I “fail[] to distinguish
between the lawfulness of searching a congressional office pursuant
to a search warrant and the lawfulness of the manner in which the
search is executed.” Maj. Op. at 14. The distinction is what these
fourteen pages discuss. The warrant was lawfully issued because it
does not seek evidence of “[a] legislative act . . . generally done in
Congress in relation to the business before it,” United States v.
Brewster, 408 U.S. 501, 512 (1972), but rather evidence of crimes, see
supra pp. 3–4. Unlike the majority, however, I believe that neither the
Supreme Court nor Brown & Williamson holds that the Clause
precludes Executive Branch execution of a search warrant. See infra
pp. 6–13.
7
Rep. Jefferson places considerable emphasis on the fact that “the
executive branch executed a search warrant on the legislative office of
a sitting Member of Congress for the first time in the history of the
United States.” Appellant’s Br. at 1. That does not mean that the
Executive Branch is without power to execute such a warrant; it just
as likely indicates that never before has the Executive Branch found
its use necessary. Indeed, this unique moment in our nation’s history
is largely of the Representative’s own making. For months, the
government repeatedly tried and failed—due in part to Rep.
Jefferson’s invocation of his Fifth Amendment right—to obtain
records in his congressional office via a series of subpoenae duces
tecum. See SA at 54–74. Only after failing to obtain the records
6
colleagues conclude that the holding in Brown & Williamson,
see 62 F.3d at 418–21, establishes that “the disclosure of
legislative material” during the execution of a search warrant,
Maj. Op. at 12, amounts to prohibited “question[ing]” because
the Clause embodies a broad “non-disclosure privilege,” Maj.
Op. at 11, that safeguards the absolute confidentiality of
legislative records even from criminal process. With respect, I
believe they vastly over-read Brown & Williamson. That
holding prohibited the production of certain records in a
congressional subcommittee’s possession in response to a civil
subpoena. See Brown & Williamson, 62 F.3d at 418–19 (citing
MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856,
857–59 (D.C. Cir. 1988)). It found no functional difference
between compelling a Member to be “questioned” orally and
compelling him to produce documents in response to a
subpoena. See id. at 420–21.
Yet, as the district court noted, “the difference between a
warrant and a subpoena is of critical importance here.”
Rayburn, 432 F. Supp. 2d at 111. Answering a civil subpoena
requires the individual subpoenaed to affirmatively act; he either
produces the testimony/documents sought or challenges the
subpoena’s validity. In contrast, a search warrant requires that
the individual whose property is to be searched do nothing
through investigative means within Rep. Jefferson’s ability to control
did the government turn to a search warrant, which minimizes Rep.
Jefferson’s role—and his Fifth Amendment right. Moreover, Rep.
Jefferson’s proposed method of warrant execution—first sealing his
office and allowing him to separate privileged from non-privileged
records—effectively eliminates the distinction between a search
warrant and a subpoena. His proposal would resurrect his Fifth
Amendment right because presumably he would respond as he did to
the subpoenae duces tecum. See infra pp. 6–7.
7
affirmative. Instead, the search must first meet the requirements
of the Fourth Amendment via the prior approval of “a neutral
and detached magistrate,” Johnson v. United States, 333 U.S. 10,
14 (1948), and, upon that official’s finding of probable cause,
the warrant “authorizes Government officers to seize
evidence without requiring enforcement through the courts,”
United States v. Miller, 425 U.S. 435, 446 n.8 (1976). The
property owner is not required to respond either orally or by
physically producing the property, including records. Cf.
Johnson v. United States, 228 U.S. 457, 458 (1913) (under Fifth
Amendment “[a] party is privileged from producing the
evidence, but not from its production”). The FBI agents’
execution of the warrant on Rep. Jefferson’s congressional
office did not require the latter to do anything and
accordingly falls far short of the “question[ing]” the court in
Brown & Williamson found was required of a Member in
response to a civil subpoena.
Moreover, as the majority recognizes, see Maj. Op. at 11, in
Brown & Williamson we relied heavily on the Clause’s
purpose—shielding the legislative process from disruption—in
reading the Clause’s prohibition of “question[ing]” broadly to
protect the “confidentiality,” see Brown & Williamson, 62 F.3d
at 417–21, of records from the reach of a civil subpoena. Noting
that the Speech or Debate “privilege is not designed to protect
the reputations of congressmen but rather the functioning of
Congress,” id. at 419, the court concluded that document
production threatened to distract the two Members from their
legislative duties, see id. at 418 (quoting MINPECO, 844 F.2d
at 859). We declared that “[d]ocumentary evidence can
certainly be as revealing as oral communications,” providing
“clues as to what Congress is doing, or might be about to do,”
id. at 420, and thereby potentially defeating the Clause’s
purpose to “insulate Members of Congress from distractions that
8
‘divert their time, energy, and attention from their legislative
tasks,’ ” id. at 421 (quoting MINPECO, 844 F.2d at 859 (quoting
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975))).
Given this purpose, we concluded that the Clause “permit[s]
Congress to insist on the confidentiality of investigative files”
and therefore barred enforcement of the subpoena. Id. at 420.
Brown & Williamson’s non-disclosure rule, however, does
not extend to criminal process. Although the presence of FBI
agents executing a search warrant in a Member’s office
necessarily disrupts his routine, the alternative procedure
proposed by Rep. Jefferson—sealing the office and permitting
him to first label his records (paper and electronic) as privileged
and unprivileged—would no doubt take much more of his time.
Moreover, the FBI agents responsible for the search of Rep.
Jefferson’s congressional office went to great lengths to
minimize disruption8 by, inter alia, executing the warrant when
the Congress was not meeting, imaging computer hard drives
rather than searching the computers, using specific search terms
for both paper and electronic records and, most important,
creating Filter Teams—one for paper records and one for
electronic records—and ensuring subsequent in camera judicial
review to minimize exposure to privileged records. See Warrant
Aff. at JA 79–87. The Filter Teams consisted of FBI agents
with no prior “role or connection to the investigation” of Rep.
Jefferson and whose “roles in the investigation [were] confined
to . . . review[ing] the . . . records seized from the Office to
8
“[T]he physical search of the Office [was] conducted by Special
Agents . . . [with] no substantive role in the investigation” of Rep.
Jefferson. Warrant Aff. at JA 80. These “ ‘non-case agents’ ”
reviewed the records in Rep. Jefferson’s office only “to determine if
they [were] responsive to the list of items” in the warrant, thereafter
“deliver[ing] the seized . . . records to” the Filter Teams. Id.
9
validate that they are responsive to the list” contained in the
warrant. Id. at 81 (describing filtering procedures for paper
records); id. at 84–85 (electronic records). By creating the Filter
Teams and “[b]y requiring judicial approval before any arguably
privileged documents could be shared with the prosecution
team, the search procedures as a whole eliminated any realistic
possibility that evidence of Rep. Jefferson’s legislative acts
would be used against him.” Appellee’s Br. at 26.
Disruption aside, it is well settled that a Member is subject
to criminal prosecution and process. See Brewster, 408 U.S. at
516 (Clause’s “purpose [is not] to make Members of Congress
super-citizens, immune from criminal responsibility”); Gravel,
408 U.S. at 626.9 The core activity protected by the
Clause—speech in either chamber of the Congress—is a public
act. In essence, therefore, what the Clause promotes is the
Member’s ability to be open in debate—free from interference
or restriction—rather than any secrecy right. That candor is the
animating purpose of the Clause is plain from the historical roots
of the privilege. In drafting the Speech or Debate Clause, the
Framers drew upon English history and the “long struggle for
parliamentary supremacy” against “Tudor and Stuart monarchs
during which successive monarchs utilized the criminal and civil
law to suppress and intimidate critical legislators” from publicly
opposing the Crown. Johnson, 383 U.S. at 178; see also
Tenney, 341 U.S. at 372 (“The privilege of legislators to be free
from arrest or civil process for what they do or say in legislative
9
Cf. U.S. Const. Art. I, § 6, cl. 1: “The Senators and
Representatives . . . shall in all Cases, except Treason, Felony and
Breach of the Peace, be privileged from Arrest during their Attendance
at the Session of their respective Houses, and in going to and returning
from the same . . . .” (emphasis added).
10
proceedings has taproots in the Parliamentary struggles of the
Sixteenth and Seventeenth Centuries.”).
And while it is true that, once it attaches, the Clause “is an
absolute bar to interference” with legislators, Eastland, 421
U.S. at 503 (citing Doe v. McMillan, 412 U.S. 306, 314 (1973)),
recognizing that the privilege is absolute once it attaches
begs the question whether the Clause attaches to begin
with.10 Significantly, in Brown & Williamson we expressly
recognized that the Clause’s “testimonial privilege might be less
stringently applied when inconsistent with a sovereign interest,”
such as the conduct of criminal proceedings. 62 F.3d at 419–20
(distinguishing Gravel’s criminal context from civil subpoena).
My colleagues qualify Brown & Williamson’s reference to
Gravel, noting “it [was] not a Member who [was] subject
to criminal proceedings” or process in Gravel. Maj. Op. at 17.
Yet, to the extent the majority reads Brown & Williamson to
limit Gravel to process served on a congressional aide during a
criminal investigation of a third party, that reading
mischaracterizes both Brown & Williamson and Gravel.
Gravel’s holding that the Clause does not “immunize Senator or
10
In concluding that “there is no reason to believe that the [non-
disclosure rule] does not apply in the criminal as well as the civil
context,” Maj. Op. at 12, my colleagues first acknowledge that
“Brown & Williamson involved civil litigation,” id. at 13.
Nonetheless they believe Brown & Williamson’s discussion of the
Clause was “more profound,” applying equally in the criminal context
merely because it “repeatedly referred to the functioning of the Clause
in criminal proceedings.” Id. Likewise, my colleagues’ notion that
Brown & Williamson applies to criminal matters because the Clause’s
“bar on compelled disclosure is absolute,” id. at 12, again begs the
question whether Brown & Williamson’s non-disclosure rule applies
to criminal matters at all.
11
aide from testifying at trials or grand jury proceedings involving
third-party crimes” is replete with observations that the Clause
“provides no protection for criminal conduct . . . performed at
the direction of the [Member] . . . or done without his
knowledge” by an aide. Gravel, 408 U.S. at 622. Gravel makes
unmistakably clear that a Member—not just a staffer—is subject
to criminal liability and process, see, e.g., Gravel, 408 U.S.
at 626 (Clause “does not privilege either Senator or aide
to violate an otherwise valid criminal law in preparing for
or implementing legislative acts” (emphasis added)), so
that Brown & Williamson’s reference to “Gravel’s sensitivities
to the existence of criminal proceedings against persons other
than Members of Congress” does no more than describe the
Gravel facts, Brown & Williamson, 62 F.3d at 419. Indeed,
Gravel “refus[ed] to distinguish between Senator and aide in
applying the Speech or Debate Clause,” Gravel, 408 U.S. at 622
(emphasis added), finding instead the existence of criminal
proceedings dispositive, id. at 626. As Gravel noted, his aide’s
privilege derives from the Member’s. Id. at 616–17 (describing
aide as Member’s “alter ego[]”). Because Gravel stresses the
significance of criminal proceedings, rather than their target, and
because his aide can invoke the Clause only if the Member can
do so, the majority is wrong in maintaining that Gravel’s
language as construed in Brown & Williamson is limited to
“third-party” crime.11
11
Unlike the Brown & Williamson dicta, Gravel’s discussion of the
Clause’s applicability to Members should direct our analysis. See
United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006)
(“ ‘carefully considered language of the Supreme Court, even if
technically dictum, generally must be treated as authoritative’ ”
(quoting Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003))).
12
Moreover, as the government points out, to conclude that the
Clause’s shield protects against any Executive Branch exposure
to records of legislative acts would jeopardize law enforcement
tools “that have never been considered problematic.”
Appellee’s Br. at 37; see also Rayburn, 432 F. Supp. 2d at 110
(“Carried to its logical conclusion, this argument would require
a Member . . . to be given advance notice of any search of his
property, including property outside of his congressional office,
such as his home or car, and further that he be allowed to
remove any material he deemed to be covered by the legislative
privilege prior to a search.”). If Executive Branch exposure
alone violated the privilege, “agents . . . could not conduct a
voluntary interview with a congressional staffer who wished to
report criminal conduct by a Member or staffer, because of the
possibility . . . that the staffer would discuss legislative acts in
. . . describing the unprivileged, criminal conduct.” Appellee’s
Br. at 38. Such a rule would also “presumably apply
to surveillance of a Member or staffer who might
discuss legislative matters with another Member or staffer.” Id.
Furthermore, “[d]epriving the Executive of the power to
investigate and prosecute and the Judiciary of the power to
punish bribery of Members of Congress is unlikely to enhance
legislative independence.” Brewster, 408 U.S. at 525 (emphasis
added); see id. at 524–25 (reasoning that “financial abuses by
way of bribes, perhaps even more than Executive power, would
gravely undermine legislative integrity and defeat the right of
the public to honest representation”). On the other hand,
limiting the law enforcement tools that may be used to
investigate Members does undermine the “legitimate needs of
the judicial process,” specifically, the “primary constitutional
duty of the Judicial Branch to do justice in criminal
prosecutions.” Nixon, 418 U.S. at 707. Recognizing the
strength of these constitutional interests, the Supreme Court
limited the scope of executive privilege—which is
13
unquestionably a confidentiality rule—by permitting in camera
judicial review of executive records to meet “[t]he need to
develop all relevant facts” in a criminal prosecution. Id. at 709.
The majority, in barring Executive Branch execution of a search
warrant—and, by extension, other common investigatory
tools—based on mere exposure to privileged records, checks the
Judicial Branch as well. Cf. Brewster, 408 U.S. at 508 (“speech
or debate privilege was designed to preserve legislative
independence, not supremacy”) (emphasis added).12
In sum, I believe the Executive Branch’s execution of a
search warrant on a congressional office—with its unavoidable
but minimal exposure to records of legislative acts—does not
constitute “question[ing]” within the meaning of the Speech or
12
Again in dicta, Brown & Williamson rejected the Third Circuit’s
holding in In re Grand Jury Investigation, 587 F.2d 589 (3d Cir.
1978), that the Clause merely prohibits evidentiary use of records of
legislative acts but not their disclosure, concluding instead that the
interest in protecting the functioning of the legislature may permit the
Congress “to insist on the confidentiality of investigative files,” Brown
& Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir.
1995). And again the criminal context distinguishes Brown &
Williamson’s dicta from this case. For example, in Brewster, a case
involving the criminal prosecution of a Member, the Supreme Court
described the violation of the Clause that occurred in United States v.
Johnson, 383 U.S. 169 (1966)—another criminal case—as arising
from “the use of evidence” of a legislative act to support the
indictment. Brewster, 408 U.S. at 510 (emphasis added). According
to Brewster, “a Member of Congress may be prosecuted under a
criminal statute provided that the Government’s case does not rely on
legislative acts or the motivation for legislative acts.” Id. at 512.
Thus, in the criminal context the Supreme Court has indicated that it
is the Executive Branch’s evidentiary use of legislative acts, rather
than its exposure to that evidence, that violates the Clause.
14
Debate Clause. On this reading of the Clause, Rep. Jefferson
remains subject to the same criminal process that applies to his
constituents. See Gravel, 408 U.S. at 626. As “[t]he laws of this
country allow no place or employment as a sanctuary for crime,”
Williamson v. United States, 207 U.S. 425, 439 (1908) (quoting
King v. Willkes, 2 Wils. 151 (1763)), I would conclude that the
Speech or Debate Clause does not bar the Executive Branch’s
execution of a search warrant on a congressional office and,
accordingly, deny Rep. Jefferson’s Rule 41(g) motion.13
13
At trial Rep. Jefferson may assert Speech or Debate Clause
immunity to bar the use of records he claims are privileged. Cf. Fields
v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13–16 (D.C. Cir.
2006) (affirming denial of Member’s motion to dismiss on Speech or
Debate Clause ground but noting that even “[w]hen the Clause does
not preclude suit altogether,” it “may preclude some relevant
evidence”) (en banc), cert. denied, Office of Sen. Mark Dayton v.
Hanson, 127 S. Ct. 2018, 2020 (2007); Johnson, 383 U.S. at 185
(“With all references to [legislative material] eliminated [from the
indictment], we think the Government should not be precluded from
a new trial on this count, thus wholly purged of elements offensive to
the Speech or Debate Clause.”). At this stage, however, Rep.
Jefferson is entitled only to copies of the records seized by the
government and judicial review of any record he claims is privileged,
as our July 28, 2006 order provides. See United States v. Rayburn
House Office Bldg., Room 2113, No. 06-3105 (D.C. Cir. July 28,
2006). To the extent the majority suggests that—if a Member can
show disruption of his legislative activities—the government may be
required to return non-privileged material to remedy a violation of the
Clause, Maj. Op. at 21–22, thereby potentially depriving the Executive
Branch of records bearing on criminality, it is a suggestion I
categorically reject.