Judge Weighs Return of Rep. Jefferson's Papers

Copyright © 2006 National Public Radio®. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

MICHELE NORRIS, host:

While all of that was going on, just a couple of blocks away from the Capitol lawyers for Congressman Jefferson and for the House of Representatives were in court. They asked a federal judge to return the papers the FBI seized in that raid last month. They've been locked in a dispute with the Justice Department over whether the executive branch can seize records from a congressman that may include legislative papers. The battle led President Bush to seal the papers for 45 days.

NPR's Larry Abramson was in the courtroom and he joins us now. Larry, this is the same judge who signed the search warrant in the first place. How did Jefferson's attorneys try to convince him that the search was illegal?

LARRY ABRAMSON reporting:

Well, Jefferson's attorneys and those for the House of Representatives said that basically this search violated what's known as the speech and debate clause of the constitution. It's supposed to protect members from being questioned about what they do in the legislative sphere and they argued that FBI agents simply came into the office of Congressman Jefferson and, in their words, were pawing through every record in the office. So they weren't looking at the particular records that they were supposed to be looking for and they ran the risk that they were going to come across legislative materials.

These attorneys argued that for the search to be legal, Congressman Jefferson would have to be present and have a chance to go over each document and decide whether or not it was related to his legislative activities, which are protected by the Constitution.

NORRIS: So it sounds like they focused more on the search than the issuance of that warrant. What did the judge have to say?

Mr. ABRAMSON: That's exactly right. They didn't challenge the issuance of the warrant. Well, the judge was pretty incredulous, I have to say, and he asked a lot of questions of Jefferson's lawyers and of the House counsel. He said, how is this going to work? You want a suspect in a potential crime to get a chance to go over potential evidence and decide well, you can't see this because it's related to my legislative activities.

He said, what if an informant said that a member of Congress has drugs hidden within legislative materials? Would you let the congressman then go in there, take a peek, you know, clean everything up and then say okay, now you can go look around?

And the judge said he just couldn't really see how this would work. But lawyers for Jefferson and for the House of Representatives said that the speech and debate clause is unique. It's not the kind of privilege that you or I would have. But it is a special privilege provided to members of Congress to protect them from influence by the executive branch.

NORRIS: Now, the Justice Department has stood pretty firm on their need to conduct such searches. What did they say?

Mr. ABRAMSON: Well, yes. In fact, the top officials in the Justice Department and the head of the FBI said that they would resign before they would return the materials, which is what Jefferson's attorneys actually want. Justice says they were sensitive to the fact that this was unusual. It's the first time in our history that a congressional office has ever been searched.

But they said there's no special protection for a congressman who's alleged to be involved in illegal activity. And they said, we're not compelling him to testify against himself. That's what the constitution is supposed to protect you against, or being compelled to testify about your legislative activities. We're simply seeking information the way we do every day for search warrants. And, they say, we're not really interfering with what he's doing as a representative of the United States.

They said even the president doesn't have the kind of protection that Congressman Jefferson is asking for. President Nixon, President Clinton, they all had to surrender the evidence that the Justice Department was trying to get from them.

NORRIS: Larry, if we could just rewind the clock, why didn't the government try a less invasive approach? Say, just asking for the documents?

Mr. ABRAMSON: Well, an FBI affidavit says that in the search last year of Jefferson's home an agent saw Jefferson trying to hide certain documents that he thought were relevant to the investigation. So there's the implication that, basically, they couldn't trust this guy. They needed to barge in and grab everything before he hid everything. Some of this information is under seal, so we don't know the full story behind that.

NORRIS: And when will all this be resolved?

Mr. ABRAMSON: Well, we're not sure. The 45-day sealing period that the President assigned to the case ends early next month. Right now the Justice Department is working on procedures that could dictate how future searches would be conducted. But that won't necessarily save Congressman Jefferson and the House of Representatives is going to have to decide whether they want this particular case to set the precedent. This is a man who looks like he could potentially be in serious trouble.

NORRIS: NPR's Larry Abramson. Thank you, Larry.

Mr. ABRAMSON: Thank you, Michele.

Copyright © 2006 National Public Radio®. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to National Public Radio. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.