Privilege has its limits

Rep. william j. Jefferson (D-La.) isn’t the only beneficiary of a ruling by the U.S. Court of Appeals for the District of Columbia that the FBI overreached when it searched his offices on a Saturday night in May 2006. The ruling is also a victory for congressional leaders of both parties who complained -- unreasonably -- that the search was a violation of the Constitution’s separation of powers and an insult to Congress’ dignity.

The appeals court agreed that allowing FBI agents to view legislative materials -- even for the purpose of separating them from incriminating evidence -- created a chilling effect on conversations between members of Congress and their staffs. That chill, the court said, ran counter to the protection for legislative independence contained in the Constitution’s speech and debate clause, which says that members of Congress “shall not be questioned in any other place” for what they say as legislators. Less clear is whether this decision will provide cover for corrupt members who seek to hide evidence of their wrongdoing among their official papers. But we’re encouraged by two aspects of Judge Judith W. Rogers’ opinion.

First, she quotes approvingly from a 1972 decision in which the Supreme Court held that the speech and debate clause did not bar the prosecution of a senator for accepting bribes in connection with an official act. In that case, the high court said the clause “does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions.” Second, Rogers seems open to a procedure in which Congress and the executive branch might agree to seal the office of a member of Congress before a search begins, preserving possible evidence of wrongdoing while allowing the member to assert privilege in connection with particular documents. The final decision might then be made by a judge.

Congressional privilege -- like executive privilege -- is an important aspect of our governmental scheme. But it shouldn’t provide a “get out of jail free” card for members of Congress who have committed crimes.