United States v. Rayburn House, Rm 2113, Washington, Dc

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.