Inquiry May Test House’s Legal Shields

Five months ago, the FBI touched off a legal and political firestorm when it raided the office of Rep. William J. Jefferson after wads of marked $100 bills were found in the Louisiana Democrat’s freezer.

Now, with major questions about that search still unsettled, the right of investigators to gain access to lawmakers’ documents and computers is shaping up as a key battleground in the sex scandal probe surrounding former Rep. Mark Foley (R-Fla.).

State and federal investigators are trying to determine whether Foley’s Internet exchanges with former House pages constituted a crime. Since opening a preliminary investigation a week ago, they have started interviewing former pages and congressional aides.

Authorities are now deciding whether to subpoena records from the office and home computers that Foley used, according to people who are familiar with the case and who requested anonymity because of the ongoing inquiry. Such evidence would be central in building a case against the former lawmaker.

Depending on what authorities find, they also may be interested in obtaining records from House leaders and their staffs to determine what they knew about Foley and his interaction with pages. Those requests could test a pledge by House leaders, including Speaker J. Dennis Hastert (R-Ill.), to cooperate fully in the probe.

Lawyers for the House have taken an aggressive position in defending the right of members to limit investigators’ access to official information in past cases. They have argued in the Jefferson case that even the contents of members’ personal electronic devices deserve such protection.

House lawyers have already told prosecutors that they would want any requests for information to be channeled through their office. Officials did not return calls seeking comment.

“There is a potential tension between the ex-congressman’s counsel who will want to restrict the ability of the FBI to look at his records, and the FBI’s unwillingness to do a visibly inadequate job,” said Charles Tiefer, a University of Baltimore law professor and a former deputy general counsel of the House.

Lawyers for Foley will try to keep the FBI’s examination of e-mail to a minimum, Tiefer said. “But that is hardly the way to find out the full story.”

Foley said through a lawyer in Florida last week that he had received no request for computers or e-mail files from investigators, but pledged to preserve the information.

The sensational two-day raid on Jefferson’s office in May made headlines because it was the first time that the FBI had ever conducted a search of the office of a member of Congress. Jefferson is the target of a federal bribery probe.

The search triggered a constitutional brawl over the extent to which members of Congress must cooperate with criminal investigators. President Bush ordered the Justice Department and the House to work out rules over how to handle future requests from investigators. But no agreement was reached. The matter has been left to the courts, where it is pending.

The debate concerns the interpretation of a provision of the Constitution known as the “speech or debate” clause that gives members immunity for their legislative activities.

House lawyers contended in the Jefferson case that the law requires investigators to give members of Congress the opportunity to review their files to delete protected material before turning them over.

Prosecutors have said that would give members a right not afforded ordinary citizens, and that giving lawmakers a chance to review files could lead to them being cleansed.

The case has not been decided, although in July, a federal appeals court ruled that Jefferson had a right, at least temporarily, to review the material sought by investigators, including paper documents and computer files.

Hundreds of pages that had been seized by investigators have been identified for review by Jefferson. But the process of turning over the computer files has proved highly cumbersome.

Though the FBI had seized the computers, an earlier court had barred agents from mining them for relevant evidence. Now, an independent, court-appointed computer forensics company has been assigned the task of trolling through the hard drives, using key words and other instructions from the FBI. The process could take months.

No one has argued yet that sexually tinged e-mail exchanges that Foley had with pages should be protected under the Constitution. Though he has resigned from Congress, Foley still has the right to determine which of his files will be turned over. “The privilege belongs to the former member. That is the historical understanding,” Tiefer said.

But the lack of clear ground rules on how investigators obtain access to the material has left other aspects of the Foley case in uncharted territory.

Besides hunting for e-mail on Foley’s computers, investigators may also want to plumb the backup computer servers that are operated by the House. Whether Foley has the right to limit access to those materials -- or whether the right to do that belongs to the House as a whole -- is unclear.

Experts in computer forensic analysis said the e-mails should be readily available on Foley’s computers or through his Internet service provider, or, in the case of official e-mail, through the House e-mail system.

“E-mail is fairly easy, forensically, to look at,” said Beryl Howell, a partner with Stroz Friedberg, a forensic computer analysis firm in Washington.

But retrieving instant messages can be tricky. Many online messaging services -- such as AOL Instant Messenger, which Foley used -- have features that allow users to disable their messages from being automatically saved on their computers. There are techniques for still obtaining the information, but that can pose problems for investigators. Instant messages “are more fleeting,” Howell said.

In any event, Howell said that investigators probably would be able to retrieve the AOL “buddy list” of people with whom Foley exchanged messages. That could prove a crucial source of leads for investigators, she said.

rick.schmitt@latimes.com