Thursday, May 25, 2006

Jefferson Search: More Blather from the Hill   [Andy McCarthy]

You may have thought the Republican congressional leadership had run out of feet to shoot themselves in in their mind-boggling quest to place themselves, in the public mind, squarely on the side of coddling corruption rather than ridding themselves of a disgraced member.  Nope. 

This morning's NYTimes reports that House Speaker Dennis Hastert is demanding that the FBI agents who were involved in the search of Rep. William Jefferson's office "should be taken off the case."  Earth to Speaker Hastert:  THE AGENTS WHO CONDUCTED THE SEARCH ARE NOT ON THE CASE.

As our Byron York explained here on the Corner two days ago, under the extraordinarily deferential search procedure the Justice Department employed in this case out of respect for separation-of-powers, the case agents are TWICE removed from the search.  That is, one team of agents, which had nothing to do with the corruption investigation, conducted the court-authorized search.  In that phase, Jefferson and Congress had the protection of a federal judge, who insured that the search warrant complied with the Fourth Amendment's "particularity" requirement — meaning agents were limited to seizing only the items described in the warrant, and were not permitted to do a general fishing expedition throughout the office.

Not content with that, DOJ added the protection of a phase two.  The non-case agents brought the seized items to another group of agents and prosecutors who had nothing to do with the case.  This was a so-called "privilege team."  Their function was to review carefully all of the items seized to make certain that only materials relevant to the corruption investigation would be given to the case agents.  Everything else — including any sensitive political materials that may inadvertently have been taken but have nothing to do with the corruption case — would be returned to congress so that they could not be used against Jefferson in violation of the speech-and-debate privilege.

Moreover, having been through this sort of thing a few times in my experience, I can also virtually assure you that there is a THIRD layer of protection.  Let's say there's some seized item as to which there could be some argument — i.e., something that may be relevant to corruption but may also be protected by the speech-and-debate privilege.  In that unlikely situation, you can bet that the privilege team will not give it to the case agents.  Rather, they will notify Jefferson's lawyers about it, bring it to a federal judge, and have the judge to decide — after hearing arguments from both sides — whether the case agents should be allowed to see it.

Short of allowing congress to be in charge of investigations of congressmen, it's hard to see how the Justice Department could have been more solicitous of the privileges and immunities of the legislature.  It is just stunning that the Speaker is taking this tack, in favor of a guy on videotape taking a $100K, most of which he stashed in his freezer.

05/25 08:30 AMShare