House Leaders Want Return of Items Seized in FBI Search

Times Staff Writers

House leaders from both parties escalated a confrontation with the Bush administration Wednesday, demanding the return of all materials seized in an unprecedented FBI raid on the office of a congressman under investigation for bribery.

And the chairman of the House Judiciary Committee, F. James Sensenbrenner Jr. (R-Wis.), announced he would hold hearings next week on what he called serious constitutional questions concerning the search of the Capitol Hill office of Rep. William J. Jefferson (D-La.).

Jefferson, who is under investigation in a federal bribery and influence-peddling case, filed a motion in U.S. District Court demanding the return of material confiscated during the 18-hour weekend search.

The congressman had been videotaped in July accepting a briefcase with $100,000 in marked bills as part of a sting, the FBI said. Federal agents later searched Jefferson’s Washington-area home and reported discovering $90,000 in cash wrapped in foil in the freezer.

The search of his legislative office has triggered the bipartisan outcry.


Speaker J. Dennis Hastert (R-Ill.) and Minority Leader Nancy Pelosi (D-San Francisco), the top House officials, said in a rare joint statement: “No person is above the law, neither the one being investigated nor those conducting the investigation.”

Setting aside their usual partisanship, they also demanded that the FBI agents involved in the search be taken off the case.

The Justice Department continued to defend the office search, which was conducted by more than a dozen FBI agents, while holding out the possibility of a compromise with the House leadership.

Members of Congress said they were not defending any possible wrongdoing by Jefferson. But they said the constitutional principle of separation of powers had been violated.

It was the first time law enforcement authorities, acting on behalf of the executive branch of government, served a search warrant on a congressional office.

Some experts said the Justice Department appeared to be on firm legal footing. And some members of Congress began to question how the public would view the leadership’s position.

“For congressional leaders to make these self-serving arguments in the midst of serious scandals in Congress only further erodes the faith and confidence of the American people,” Sen. David Vitter (R-La.) wrote in a letter to Senate leaders.

The House is the focus of more corruption investigations than at any time in a generation.

Conservative radio commentator Rush Limbaugh criticized House Republicans for what he perceived as putting themselves above the law. “In essence, they’re asking for themselves to be treated as an imperial body,” he said.

President Bush’s top political advisor, Karl Rove, fielded complaints about the search during a closed-door meeting Wednesday with House Republicans, several members present said.

Lawyers for Jefferson, who has not been charged with any wrongdoing, went to court to try to force the return of property seized during the search, including what they described as two boxes of paper records and “every record from the congressman’s personal computer.”

Their legal filing said the search violated both the doctrine of separation of powers and the rights of members of Congress under the Constitution’s “speech and debate” clause, which affords protection for lawmakers in the course of performing legislative duties. The court filing also asserted that FBI agents had broken the law by blocking efforts by Jefferson’s lawyers and the House general counsel to monitor the search.

But several legal scholars said the law did not afford blanket protection to members suspected of criminal wrongdoing.

“The legal right of the government to do this is pretty easy,” said Viet Dinh, a Georgetown University law professor who was a senior Justice Department official from 2001 to 2003. “It is only a matter of a judgment: Do you really want this evidence enough to take the political heat that will come down on you when you take such an unprecedented step?”

Georgetown law professor Mark Tushnet also said he did not see a constitutional problem with the search.

“If they can prosecute you for something without violating the speech-and-debate clause, they can use the ordinary methods for gathering evidence of the crime, including searches of your office,” he said.

The clause in the Constitution is intended to protect lawmakers from being punished for what they say and do in Congress. It says: “For any speech or debate in either house, they shall not be questioned in any other place.”

The Supreme Court has ruled that this privilege applies to official duties and is not a shield for criminals. In 1972, the justices upheld a bribery charge against former Maryland Sen. Daniel B. Brewster, saying the clause did not “make members of Congress super-citizens, immune from criminal responsibility.” In that decision, Chief Justice Warren E. Burger wrote, “Taking a bribe is, obviously, no part of the legislative process or function.”

The battle over the Jefferson documents had been simmering behind the scenes since the Justice Department issued the congressman a wide-ranging subpoena in August. People familiar with the investigation, who requested anonymity because the information was under court seal, said Jefferson had fought the release of the documents in part by asserting his 5th Amendment right against self-incrimination.

A federal judge overseeing the closed proceeding in Alexandria, Va., recently agreed that Jefferson did not have to turn over documents that would incriminate him, the sources said. But the judge also told government lawyers that they were free to pursue other means to obtain the information, such as through a court-authorized search.

Atty. Gen. Alberto R. Gonzales approved the search, the sources said.

Robert Trout, Jefferson’s lawyer, could not be reached for comment on whether the lawmaker had asserted his right against self-incrimination.

“We have made extensive efforts since last August to obtain this important information through other means and were unable to do so,” the Justice Department said in a statement.

Privately, House members and staffers said they suspected the Justice Department was seeking to establish a legal rationale that would allow it to search congressional offices -- and chose a Democrat as the first target in the hopes Republicans, who control the chamber, would acquiesce.

Amy Walter, who analyzes House politics for the nonpartisan Cook Political Report, said congressional leaders appeared to be motivated mostly by fear that the Justice Department was trying to set a precedent. “I just have to assume they are concerned about what it means for them down the road,” she said.

But that, Walter added, is politically risky. “I understand what they are saying intellectually,” she said, “but you also have a Congress that is seen by the public as out of touch and mired in scandal. And this reinforces that.”

Jefferson has denied wrongdoing but has received little support from his party. Democrats have gained ground with voters by decrying a Republican “culture of corruption” in Washington, and they seek to portray the allegations against Jefferson as an isolated case.

Pelosi sought Wednesday to further isolate the New Orleans lawmaker, demanding in a one-sentence letter that he resign from the powerful Ways and Means Committee “in the interest of upholding the high ethical standard of the House Democratic Caucus.”

Jefferson said he would not resign.

Times staff writer David G. Savage contributed to this report.