Equal justice

The U.S. Supreme Court this week missed an opportunity to make it clear that members of Congress suspected of a crime must answer to the law just as any ordinary citizen must.

As part of an investigation that later led to an indictment on graft charges, FBI agents -- armed with a valid warrant -- searched the Capitol Hill offices of Rep. William J. Jefferson (D-La.) in 2006, seizing files and computer discs. After a bipartisan outcry from congressional leaders, President Bush appeased Congress but undermined his own prosecutors by sealing the evidence for 45 days so the FBI couldn’t have access to it.

Meanwhile, congressional leaders argued that the search violated Jefferson’s rights under the Constitution’s speech or debate clause, which says that members of Congress “shall not be questioned in any other place” for what they say as legislators. A federal district judge rejected this extravagant claim, but it was rehabilitated by the U.S. Court of Appeals for the District of Columbia Circuit.

The appeals court agreed with Jefferson that the search violated his rights because it allowed investigators to lay hands on files that might have been related to legislative business, even though the FBI has established a separate “filter team” to screen out privileged materials. But the court rejected Jefferson’s demand that all the documents be returned to him, suggesting that materials deemed “nonprivileged” by a judge could remain with prosecutors. That raises the question of how documents can be secured before a judge can sift through them.

Despite the controversy over the search of his office, Jefferson was accused by a grand jury last year of soliciting millions of dollars in fees and company stock in exchange for using his office to promote business interests in Africa. During the investigation, the FBI raided Jefferson’s home and found $90,000 in cash stuffed in a freezer. Jefferson has pleaded not guilty.

Whatever the outcome of Jefferson’s trial, the appeals court decision cried out for review by the Supreme Court, which disappointingly refused to act. In asking the justice to take the case, Deputy Solicitor General Gregory Garre said that “the court of appeals’ decision warrants reversal because the speech or debate clause by its terms protects ‘speech or debate’; it does not protect against disclosure of information through a criminal search warrant.”

It’s understandable that members of Congress wouldn’t want FBI agents rooting through their files. Ordinary Americans feel the same way, but they must yield to a valid search warrant. So should Congress in the rare instance in which the FBI convinces a judge, as it did in this case, that it has exhausted “all reasonable efforts” to obtain the information by other means.