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Sensenbrenner drafting bill to protect congressional documents from FBI raids

[JURIST] US Rep. James Sensenbrenner (R-WI) [official website], chairman of the US House Judiciary Committee [official website], said Tuesday that he intends to draft legislation that would shield congressional documents and materials from being seized in searches similar to the FBI raid [JURIST report] on the congressional office of Rep. William Jefferson (D-LA) [official website] earlier this month. Speaking during the committee's Tuesday oversight hearing [meeting materials; JURIST report] on the constitutional questions raised by the raid, Sensenbrenner also said [opening statement] that although the constitution's Speech or Debate Clause [backgrounder] will not protect members of Congress from prosecution stemming from activities outside of legitimate legislative acts, the clause prevents the executive branch from seizing documents created in the course of the legitimate legislative process:

Certainly, any Member of Congress who has committed a crime should be prosecuted for his criminal acts. But the issues involved in this unprecedented action by the Executive Branch transcend any particular Member. A constitutional question is raised when communications between Members of Congress and their constituents - documents having nothing to do with any crime - are seized by the Executive Branch without constitutional authority. This seizure occurred without so much as lawyers or representatives of Congress being allowed to simply observe the search and how it was conducted. Neither was anyone representing the institutional interests of Congress allowed to make a case before a judge raising these important separation of powers issues.

Our Founding Fathers Thomas Jefferson and James Madison made clear that a general legislative constitutional safeguard, designed to prevent encroachments by the executive branch on the legislative branch, is embodied in article I, section 6, clause 1 of the Constitution, which provides that Senators and Representatives "shall not be questioned" for "any Speech or Debate in either House."

In the case of Representative William J. Jefferson, the search warrant the Justice Department obtained from a federal judge allowed for his Congressional office to be largely combed over, with materials - including computer hard drives - placed in the sole possession of the Department of Justice. The materials taken very likely include communications, created in the course of the legitimate legislative process, that have nothing to do with the criminal inquiry into Representative Jefferson's activities. The Justice Department had the ability to seek enforcement of their federal grand jury subpoena in federal court to obtain the same documents seized from Congressman Jefferson's Capitol Hill Office, but chose not to. The Justice Department has historically used federal grand jury subpoenas to obtain documents relevant to a criminal investigation of a Congressman or Senator.
Reuters has more.

Sensenbrenner also said that he plans to call US Attorney General Alberto Gonzales and FBI Director Robert Mueller to testify, saying that he wants the government to explain the raid, particularly the reasons for searching Jefferson's office during the night and why Jefferson was denied permission to have his attorney present during the 18-hour raid. Both Gonzales and Mueller, along with Deputy Attorney General Paul McNulty [official profile], have threatened to resign [JURIST report] if forced to hand over information regarding the raid of Jefferson's office, but seemed to cool their threats when President Bush sealed the evidence seized during the raid [JURIST report] for 45 days pending an agreement between the Justice Department and members of Congress. Sensenbrenner, however, made it clear that talks to create guidelines for future criminal investigations of members of Congress would not prevent him from bringing in government officials to explain the raid. AP has more.

5/31/06 8:39 AM ET - Geraldine Gennet, General Counsel for the US House of Representatives, sent a letter [text] to Gonzales Tuesday concerning House-Justice Department discussions on establishing clear procedures and protocols for future searches of congressional offices. Gennet wrote:
It is the duty of the Department of Justice to aggressively investigate and prosecute public corruption. No one is above the law. It is vital to the well-being of our Nation that corruption, wherever it is found, be eliminated.

It is also vital to the well-being of our Nation that all branches of government safeguard the Constitutional system of checks and balances that were designed by the Founders to protect the American people from the potential for abuse of power by a single branch. That is why the Speaker and the Democratic Leader have instructed us to develop a set of procedures that are consistent with the Separation of Powers principle and the Speech or Debate Clause of the Constitution, while also assuring that congressional offices are not used to shield anyone from legitimate investigations of criminal wrongdoing. The House Office of the General Counsel believes that we can do this.
Gennet said she hoped to meet with DOJ lawyers as early as next week to begin discussions on "a set of procedures and protocols that will pass Constitutional muster."

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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