Friday, August 03, 2007
The really important question: Do we have to put the money back in his freezer?
William Jefferson scores a partial win in the D.C. Circuit Court of Appeals.
Jefferson had previously been shot down hard in his claim that he should get to decide what documents were relevant to the investigation and which were privileged under the Speech or Debate clause. In a 2-1 decision, the Court of Appeals gives him a bit of help.
Normally, this type of thing would be a lead-pipe cinch for Supreme Court review - this is the first time such a search has been conducted after all, and depending on what documents are ultimately determined to be privileged, could severely impact the government's case. The Justice Department claimed there would be no negative consequence on Jefferson's prosecution, but this decision could theoretically lead to the loss of potentially incriminating documents, presuming Jefferson encourages the judge to take an expansive view of the privilege. Assuming there are documents of significant import to the government's case whose admissibility is now at risk, I'd say a request for review is a virtual certainty, which means Jefferson's trial will almost certainly be put off.
Tip - Teeth
Jefferson had previously been shot down hard in his claim that he should get to decide what documents were relevant to the investigation and which were privileged under the Speech or Debate clause. In a 2-1 decision, the Court of Appeals gives him a bit of help.
Accordingly, we hold that a search that allows agents of theBasically - the Court's problem was that the procedures set up by the FBI to search and review the records did not permit the possibility of asserting a legislative privilege before the Justice Deparment (The Executive Branch) viewed records to which they were not potentially entitled. Jefferson's proposed remedy - that he be given back everything seized - was not endorsed by the Court.
Executive to review privileged materials without the Member’s
consent violates the Clause.
...we conclude that theThe opinion may be read here.
Congressman is entitled, as the district court may in the first
instance determine pursuant to the Remand Order, to the return
of all materials (including copies) that are privileged legislative
materials under the Speech or Debate Clause. Where the Clause
applies its protection is absolute. For the reasons stated, absent
any claim of disruption of the congressional office by reason of
lack of original versions, it is unnecessary to order the return of
non-privileged materials as a further remedy for the violation of
the Clause. The Congressman has suggested no other reason
why return of the non-privileged documents is required pursuant
to Rule 41(g), and, in any event, it is doubtful that the court has
jurisdiction to entertain such arguments following the return of
the indictment.
Normally, this type of thing would be a lead-pipe cinch for Supreme Court review - this is the first time such a search has been conducted after all, and depending on what documents are ultimately determined to be privileged, could severely impact the government's case. The Justice Department claimed there would be no negative consequence on Jefferson's prosecution, but this decision could theoretically lead to the loss of potentially incriminating documents, presuming Jefferson encourages the judge to take an expansive view of the privilege. Assuming there are documents of significant import to the government's case whose admissibility is now at risk, I'd say a request for review is a virtual certainty, which means Jefferson's trial will almost certainly be put off.
Tip - Teeth
