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As Jefferson Ruling Stands, Prosecutors Feel Stymied
Justices Decline to Review Decision Against FBI Raid on Congressman's Office, Raising Fears Over Other Inquiries

http://www.washingtonpost.com/wp-dyn/content/story/2008/03/31/ST2008033102285.html

By Robert Barnes and Susan Schmidt
Washington Post Staff Writers
Tuesday, April 1, 2008; Page A04

The Supreme Court announced yesterday that it will not review a lower court's decision that an FBI raid on Rep. William J. Jefferson's congressional office violated the Constitution, a ruling that federal prosecutors had said could make lawmakers' offices a "sanctuary for crime."

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Without comment, the court decided not to get involved in the legal fight between the Justice Department and Congress over the 2006 search of the Louisiana Democrat's Washington office. Jefferson subsequently was indicted on charges that he solicited more than $500,000 in bribes. He pleaded not guilty, and his case has not yet gone to trial.

Jefferson was indicted without the use of the documents seized, but the Justice Department said the ruling would endanger other probes. "Investigations of corruption in the nation's capital and elsewhere will be seriously and perhaps fatally stymied," the government argued in court briefs.

Peter Zeidenberg, a former public integrity prosecutor now in private practice, said the lower court's ruling not only affects searches of congressional offices but also potentially limits the questioning of congressional staff members by law enforcement officials.

"I think it's going to cause a great deal of confusion about what can and can't be done. It's a very difficult path for prosecutors," he said. "People are not going to know where the lines are drawn."

Jefferson's attorney, Robert Trout, said his client is "gratified" that the court's ruling will stand. "From the very moment that we learned of the FBI's raid on a congressional office -- the first in our nation's history -- we were convinced that the Department of Justice was out of bounds," Trout said.

A panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in August that the seizure of printed materials and computer records from Jefferson's office violated the Constitution's "speech or debate" clause. That clause protects members of Congress from questioning by members of the executive branch about their legislative work.

A Justice spokeswoman said the department is disappointed that the court will not review the case. The government's brief had said the lower court's ruling also could endanger the use of wiretaps or searches of the "homes, vehicles or briefcases" of members of Congress.

Attorney General Michael B. Mukasey said in testimony before the House Judiciary Committee in February that there were "ongoing discussions" between Justice lawyers and the chamber about resolving law enforcement concerns in future investigations without violating congressional protections.

"I deeply hope that it comes out that way, rather than in some bright-line ruling [from the courts] that one of us can't live with or would find it awkward to live with," Mukasey said.

The indictment alleges that Jefferson used his influence as chairman of a House caucus on Africa to solicit bribes. Investigators say they found $90,000 in cash in a freezer in Jefferson's Washington home, but he has maintained his innocence and was reelected after his indictment.

Government prosecutors are concerned about how the appeals court's decision could affect other corruption probes, including investigations of several congressmen that arose from the Jack Abramoff lobbying scandal.

The raid of Jefferson's office was the FBI's first search of a congressional office. The bureau received a warrant from a federal judge that allowed agents to collect only non-legislative material. The two boxes of papers and computer drives were examined by a "filter team" of lawyers not aligned with the prosecution, and only documents the team deemed relevant were removed.

The search caused an uproar on Capitol Hill, and President Bush ordered the materials held by Solicitor General Paul D. Clement until courts determined the action's legality.

A judicial panel of the D.C. appeals court decided that government investigators probably had seen privileged legislative documents and, as a result, the raid had violated the speech-or-debate clause. The court said Jefferson should be allowed to review the material taken from his office and identify which documents were privileged. A judge is to decide whether prosecutors can have access to those papers.

The case was set for trial in February, but was delayed by Jefferson's appeal of another issue in the 4th Circuit Court of Appeals.

Staff writer Allan Lengel and staff researcher Rena Kirsch contributed to this report.