Tuesday, May 23, 2006

NOTE TO CONGRESS: JEFFERSON IS GETTING FAIR TREATMENT   [Byron York]

 There seems to be some confusion among lawmakers on Capitol Hill (as well as some journalists) about whether the search of Rep. William Jefferson's office raises serious separation of powers issues. What is being overlooked in the argument is the extraordinary care the Justice Department has taken to address those issues.

First, it should be said that prosecutors seem to have Jefferson dead to rights. They have — and have had since late last summer — more than enough evidence to justify a search of his office. In the last months, they have apparently tried other, more standard, means to try to get Jefferson to comply with requests to turn over the evidence, to no avail. There is even, in the 95-page search warrant request, a section headlined GOVERNMENT EFFORTS TO EXHAUST ALL LESSER INTRUSIVE APPROACHES TO OBTAINING RELEVANT DOCUMENTS AND RECORDS LOCATED IN THE WASHINGTON, D.C. CONGRESSIONAL OFFICE OF WILLIAM J. JEFFERSON. It is followed by several redacted paragraphs in which prosecutors apparently describe their attempts to get Jefferson to turn over information.

And then there is this:

The government has exhausted all other reasonable methods to obtain these records in a timely manner short of requesting this search warrant. A member of Congressman Jefferson's staff has indicated to law enforcement agents that records relevant to the investigation remain in Congressman Jefferson's Capitol Hill office, which the government has been unable to obtain to date. Left with no other method, the government is proceeding in this fashion.

Then the warrant describes a set of extraordinary procedures involving not only prosecutors but also the Court, by which Congressional privileges will be respected:

To ensure the prosecution team does not inadvertently review any potentially politically sensitive, non-responsive items in the office, or information that may fall within the purview of the Speech or Debate Clause privilege, or any other pertinent privilege, the physical search of the office will be conducted by special agents from the Federal Bureau of Investigation who have had no substantive role in the investigation.

The non-case agents will remove from the office those paper records determined to be responsive [to a detailed list of things to be search for included at the end of the warrant request]…Other than as required to determine responsiveness, the non-case agents will not disclose to anyone any politically sensitive and non-responsive items inadvertently seen by the non-case agents during the course of the search of the office and will attest in writing to their compliance with this procedure.

Before giving any paper records seized from the office to the prosecution team, the non-case agents will deliver the seized paper records to the designated Filter Team….Prior to their appointment, the Filter Team will have had no role or connection to the investigation in this matter and their subsequent roles in the investigation will be confined to their duties and responsibilities in connection with these special procedures.

The Filter Team will review the paper records seized from the office to validate that they are responsive…Any paper records seized from the office that are determined by the Filter Team to be unresponsive…will be promptly returned to the office…

Paper records validated by the Filter Team as responsive…will undergo a second level of review by the Filter Team. The Filter Team will review the responsive records to determine if they may fall within the purview of the Speech or Debate Clause privilege or any other pertinent privilege…

For those paper records determined by the Filter Team as potentially within the purview of the Speech or Debate Clause privilege, or any other pertinent privilege, the Filter Team shall provide a log of those potentially privileged paper records to counsel for Congressman Jefferson. The log shall identify the record by date, recipient, sender and subject matter….The Filter Team shall not provide the log or copies of the potentially privileged paper records to the prosecution team, unless otherwise ordered by the Court…

The Filter Team shall then request the District Court to review the potentially privileged paper records in order for the Court to name a final determination whether they contain privileged information, unless counsel for Congressman Jefferson consents to the production to the prosecution team of certain of the potentially privileged paper records.

The warrant application goes on to describe a similar method of dealing with electronic records. Given the careful methods outlined in the warrant application, and given the apparently unusual situation presented by the Jefferson case, it seems hard to deny that the Justice Department, working with the Court, has taken sufficient steps to respect congressional privileges.

05/23 07:48 PMShare