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Congressman Could Challenge Federal Possession of Papers

Times Staff Writer

The Justice Department on Tuesday proposed a way to calm the furor over the unprecedented search of Rep. William J. Jefferson’s Capitol Hill office, but also disclosed evidence that the Louisiana Democrat tried to conceal documents during an earlier search.

Responding in court to a demand by Jefferson that documents seized in the office raid this month be returned, the department proposed a “procedural accommodation” that would give Jefferson a new chance to challenge whether prosecutors should have the documents.

Although it was unclear whether the proposal would be accepted, it was the first significant public concession by the department since the 18-hour search of Jefferson’s office ignited a political firestorm.

The disclosure of the search has created the spectacle of the House leadership -- Republicans and Democrats alike -- siding with the target of a federal bribery investigation in the name of protecting congressional traditions and the doctrine of separation of powers.

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It also left some senior officials, including Atty. Gen. Alberto R. Gonzales, weighing whether to resign if President Bush decided to intervene and order the documents returned.

Bush last week ordered the documents sealed for 45 days and urged the parties to negotiate a settlement.

The general counsel of the House, Geraldine Gennet, wrote to Gonzales on Tuesday, proposing that the two sides meet next week.

“In order to prepare for this meeting, we have been developing proposals for you to obtain the evidence you need in a manner consistent with the Constitution,” she said.

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But members of Congress continued to ratchet up the rhetoric.

House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) said Tuesday that he would summon Gonzales and FBI Director Robert S. Mueller III to testify before his committee about their decision to launch the search.

“They didn’t get it right this time,” Sensenbrenner said during a committee hearing that he had titled: “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?”

Jefferson went to federal court last week in an effort to force the return of his documents. The Justice Department filing Tuesday addressed that request.

Jefferson and members of Congress have said the search violated the “speech or debate” clause of the Constitution, which protects members of Congress while they are performing their legislative duties. They also have complained that agents scooped up documents that may have been protected under the Constitution.

Department lawyers said in their filing that the interpretation of the Constitution raised by Jefferson and his lawyers would turn congressional offices into “sanctuaries” where members could engage in illegal conduct.

The department added that it had used “elaborate procedures” to ensure that constitutionally protected material would not be removed.

The May 20-21 search was conducted by agents who had no role in the investigation. The documents were then transferred to an independent “filter team” composed of two Justice Department lawyers and an FBI agent for evaluation.

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But Justice Department officials also gave ground Tuesday.

The department proposed that it give copies of all seized documents to Jefferson and his lawyers. They would then be given an opportunity to raise objections about whether individual documents were properly seized. Any disagreements between the two sides would be resolved by a judge.

Under the original plan, many of the documents would have been forwarded directly to Justice Department prosecutors.

Jefferson and his lawyers could conceivably file objections to all of the documents taken, but a senior Justice Department official, speaking on condition of anonymity because of the continuing proceedings, said the department believed that many of the documents were properly seized.

Jefferson’s attorney, Robert Trout, declined to comment.

The solicitor general took custody of the materials, including two boxes of documents and a host of computer files, on the afternoon of May 26, the day after Bush ordered them sealed.

Jefferson has been the focus of a federal bribery and corruption investigation since March 2005. Investigators are examining whether he used his influence to promote a Louisville-based Internet firm called iGate to Nigeria, Ghana and other African countries in return for stock and more than $400,000 in cash. Agents are also examining whether he bribed high-ranking government officials in Africa.

The FBI said Jefferson had been videotaped accepting $100,000 in marked bills intended as a bribe, and a search of his Washington home last year turned up most of the money, foil-wrapped in his freezer.

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The government said the latest search -- the first of a congressional office in history -- was conducted as a last resort. They said that Jefferson had resisted a subpoena issued in August seeking documents about his business dealings.

“Rep. Jefferson’s evident attempt to frustrate the collection of documents pursuant to a lawful warrant raised questions about whether any production in response to the subpoena would be complete,” the department said in the motion filed Tuesday.

In the latest twist in the investigation, the department revealed evidence that, during a search of his New Orleans residence in August 2005, “Rep. Jefferson attempted surreptitiously to remove documents responsive to the list of items to be seized.”

In an affidavit signed Monday, an FBI agent, Stacey E. Kent, described how she was assigned to monitor Jefferson and certain members of his family while the search was in progress, and said that she observed Jefferson trying to play a game of keep-away with the FBI.

At one point during the search, she said, Jefferson was sitting at a table in the kitchen of his home, looking at pieces of paper. He then asked to review a copy of the subpoena, and Kent said she observed Jefferson taking the subpoena and the other documents and putting them together under his elbow.

According to Kent, Jefferson later asked that he be allowed to move to his living room while the search continued. She said he took the subpoena and the documents with him, sat in a recliner in the room, then placed the documents in a blue bag next to the recliner.

The bag had been previously searched, which Kent said Jefferson had been in a position to see.

Kent said she told Jefferson she needed to look at the documents he had placed into the bag. Jefferson said the documents were subpoenas. Kent said she persisted. Jefferson relented.

The documents turned out be faxes from a person named B.K. Son, which had been requested under the warrant.

“It is my belief that when Congressman Jefferson placed documents into the blue bag,” Kent said in the affidavit, “he was attempting to conceal documents that were relevant to the investigation and expressly sought by the warrant to search his New Orleans, La., residence.”


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