Search of Congressman's Office Pits White House Against House Leaders

RAY SUAREZ: The FBI search of Louisiana Democrat William Jefferson's Capitol Hill office last weekend set off a war of words between two branches of government: the legislative, which includes the U.S. House, and the executive, home to the FBI.

Jefferson is under investigation for taking bribes in return for promoting business ventures in Nigeria. He quickly condemned the raid, noting he has yet to be indicted.

REP. WILLIAM JEFFERSON (D), Louisiana: I think it represents an outrageous intrusion into separation of powers between the executive branch and the congressional branch, and no one has seen this in all the time of the life of the Congress.

RAY SUAREZ: Jefferson was backed up by the speaker of the House, Republican Dennis Hastert, and Democratic Leader Nancy Pelosi. In a rare joint statement, the House leaders argued the Justice Department had overstepped its bounds.

They wrote, "No person is above the law, neither the one being investigated, nor those conducting the investigation."

But Attorney General Alberto Gonzales, who okayed the FBI's search, said the move was legal.

ALBERTO GONZALES, U.S. Attorney General: We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists.

REP. DENNIS HASTERT (R-IL), Speaker of the House: We think those materials ought to be returned. We also think that those people involved in that issue ought to be frozen out of that, just for the sake of the constitutional aspect of it.

RAY SUAREZ: Yesterday, President Bush entered the fray, ordering his Justice Department to seal the records seized from Jefferson's office for 45 days while the two sides negotiate a compromise. In a statement, the president said the government has not faced such a dilemma in more than two centuries.

And, Professor Gillers, let's start with you. Was the search of Congressman Jefferson's Capitol Hill office constitutional?

STEPHEN GILLERS, Professor, New York University Law School: Absolutely. We should understand what has to be done before there can be a search.

First of all, the FBI agents had to swear under oath, on penalty of perjury, that the facts they were presenting to a federal judge were true. Department of Justice nonpartisan career lawyers had to review those facts.

And a federal judge had to look at the facts and decide that they showed substantial reason to conclude that evidence of illegal conduct resided in the congressman's office. Now, Judge Ellis, who signed the warrant, surely understood that the place of the search would be a congressional office.

So we have a third branch of government coming in here, and it's the federal judiciary which had approved the search. So, as far as the Fourth Amendment goes, it appears perfectly legitimate.

So far as the Constitution goes, my copy of the Constitution says nothing about creating search-free zones in congressional offices, whether they be on Capitol Hill or in the congressman's district.

RAY SUAREZ: Professor Turley, was the late-night search of William Jefferson's office by the FBI constitutional?

JONATHAN TURLEY, Professor, George Washington University School of Law: I think it's highly questionable. I would not bet on the government's being able to retain these documents.

You know, Section VI of Article I in the Constitution contains the Speech or Debate Clause, and that has been given a very robust interpretation. The mere fact that you have the judiciary signing off on a search by the executive branch does not change the equation.

I mean, in the Eastland case by the Supreme Court, the court said: Look, this clause is designed to keep the other two branches from ganging up on the legislative branch. And, in fact, the Supreme Court said this is to prevent intrusions of those branches into the legislative process.

And we have seen courts in the past quash subpoenas, which are far less intrusive than a physical search of this kind. And we've even seen them throw out indictments because of the Speech or Debate Clause. And so I think there are very significant questions.

What I don't think is a question is that this violates the spirit of the Constitution; I think this is a great offense to a coequal branch.

And, Professor Gillers, does the Speech and Debate Clause apply here?

STEPHEN GILLERS: Well, that's not actually the Speech and Debate Clause. That's a different clause.

The Speech and Debate Clause immunizes members of Congress from having to answer for speech and debate. The Supreme Court has actually interpreted it rather narrowly.

It has said that the clause does not make legislators, quote, "super-citizens," closed quote, immune to the ordinary criminal processes that the rest of us are subject to. It said that in the case of Senator Brewster more than 30 years ago.

Nothing here involves speech or debate; nothing here is integral to the legislative function. This is about substantial reason to believe a crime has been committed. Committing crimes is not speech and debate, and it is not integral to what senators and congressmen do.

RAY SUAREZ: Professor Turley?

JONATHAN TURLEY: Yes, I'm afraid I have to disagree with aspects of that. There's no question that immunity does not mean that a member of Congress can start storing corpses like stack wood in his office. I mean, they are not a foreign country; they are not an embassy.

But there is, however, some of these devils in the details. In the past, subpoenas have been used in order to acquire this information. And that, in fact, is viewed as the most acceptable practice.

We're not saying that the Speech or Debate Clause means that you're immune from criminal prosecution or investigation; this is a question of means. And when the professor says: Look, nothing here involves any of these speech or debate functions, if you look at what occurred in that office, I don't see how you could reach that conclusion.

In these cases -- now you're saying that this might be a problem -- how should they have gone about this? Or are you submitting that under no circumstances should the FBI have been in his office?

JONATHAN TURLEY: Well, no, I think that what they should have done is they should have gone through the subpoena process. And if there was a refusal of subpoena, they could go to the court to require production. In the meantime, they could have gone to the House and asked that all of this material be put under the control of the House of Representatives.

These are things that have happened before. There's a reason why this has never happened in history, because it is such a great offense and because there's other alternatives.

Keep in mind they took the man's entire computer hard drive. They took everything this congressman did on that computer. They took massive amounts of information on who he's meeting with, not just isolated to this one case.

These are the types of fruits and instrumentalities that go with a search warrant; that's why it's so inappropriate. We're not talking about immunity from criminal investigation. We're talking about the means used in that investigation.

RAY SUAREZ: Well, Professor Gillers, how about that? Yes, try to get the information, but try to get it another way?

STEPHEN GILLERS: I agree. As a matter of policy, it makes a lot of sense to negotiate the least intrusive means. It doesn't mean you have to as a matter of constitutional law, but as a matter of policy it makes sense.

Now, the Department of Justice has said that they did subpoena these files and that they were stonewalled for months. There's always the risk that they can be destroyed if they continue to wait and work through the processes that Professor Turley identifies. The evidence, so far as we've seen it, is fairly strong.

Now, insofar as seizing the hard drive goes, we have a lot of experience with this because, on rare occasion, the bureau will search a lawyer's office. And when you search a lawyer's office, you may get a lot of privileged information, along with the stuff you're really looking for.

And what the department has done, properly, is to utilize screeners, people who review the material seized, who are not part of the investigation or the prosecution at all, and who identify those files that the judge has identified as subject to appropriate seizure, and turned those files only over to the investigating authorities.

RAY SUAREZ: Would you be satisfied with those safeguards, Professor?

JONATHAN TURLEY: No, I'm afraid I'm not. I mean, there is a difference between searching a lawyer's office and searching the office of a coequal branch, and that difference is contained in the first three articles of the Constitution.

The separation of powers really is the thing that brings stability to our system. It's the thing that holds it together, this tension between the three branches.

The legislative branch conducts oversight of the executive branch. It is hard to do that if there is a threat that your office can be raided, that your hard drive can be taken. It's a huge cost.

And what I would suggest is that the very fact that they had earlier tried the subpoena and they could then -- they should have then gone back to the court and got an order for compliance, instead of taking the step.

But the fact that there were eight months where this man knew they were going after the stuff in his office actually reduces the exigency. It was so unlikely that they were going to be acquiring some significant amount of evidence in this case. There was not the exigency.

And instead, they treated this office, as was stated earlier, like any other office, like a lawyer's office, but this wasn't the Bada Bing club. This is the legislative branch, a coequal branch, that is given special protections under this very important principle of separation of powers.

And I would finally note that this president, in this sort of overall context that we've seen during these two terms, is the most hostile president to the separation of powers, I think, in the history of this country. From the day he took office, he has had serious problems with the concept of shared authority between the branches.

And this, I think, is just the ultimate manifestation of what many of us view as the contempt for the separation of powers.

RAY SUAREZ: Let me get a quick response from you, Professor Gillers.

STEPHEN GILLERS: I'm not going to defend the president's view of separation of powers, but let's be clear: The president did not order the search. Career, nonpartisan lawyers at the Department of Justice were involved in vetting this all along the way.

And remember that the fact that this is the first time it's happened in more than 200 years should be seen as proof that DOJ exercises tremendous self-restraint when members of Congress come under suspicion.

RAY SUAREZ: Are you worried, Professor Turley, that the fruits of this search could end up being ruled ineligible in court? Does this rise to that level?

JONATHAN TURLEY: I think there's going to be a very significant challenge. And I think that we would both agree that there is, indeed, ambiguity here.

There's a reason for it. Yes, the Speech or Debate Clause has been left ambiguous by the branches. There's been a sense of self-restraint. And I would suggest the fact that it hasn't occurred in 200 years indicates there has been greater adult supervision at the Department of Justice.

This president hasn't been president for 200 years. He's been president for two terms. And during those two terms, he's been repeatedly seen as hostile to the separation of powers.

And, yes, there will be a challenge. And I think that they did Congressman Jefferson a great favor by allowing him to wrap himself in Article I and to defend the Constitution when he should be explaining why there's $90,000 in his freezer.

RAY SUAREZ: To be continued. Professor Gillers, Professor Turley, thank you both.

STEPHEN GILLERS: Thank you.

JONATHAN TURLEY: Thank you.