at JA 80-87 (directing search team to seize only records responsive to warrant and to provide potentially privileged records to Rep. Jefferson and to district court to determine privilege vel non); Search Warrant (May 21, 2006), reprinted in JA at 3 (incorporating Warrant Affidavit by reference). How that accommodation is to be achieved is best determined by the legislative and executive branches in the first instance.5 ALTHOUGH THE COURT has acknowledged, where it is not a member who is subject to criminal proceedings, that the privilege might be less stringently applied when inconsistent with a sovereign interest, see Brown & Williamson, 62 F.3d at 419-20; supra note 4, this observation has no bearing here and is relevant, if at all, to the question of remedy for a violation, not the determination of whether a violation has occurred. 837, 51 L.Ed.2d 30 (1977), distinguished between the receipt of privileged information by an agent of the Executive and by the prosecution team in the context of a civil rights claim based on a Sixth Amendment violation, the nature of the considerations presented by a violation of the Speech or Debate Clause is different. Contact us. Elm Tree Site (East Front) WebWashington, DC Office. at 84-85 (electronic records). The Capitol complex was sealed off, and staff in the building were told to stay in their offices after the building was put into lockdown by the United States Capitol Police. Const., art. 1100 LHOB (Ways and Means Committee) 1153 (1952) (Jackson, J., concurring)). at 37. [T]he physical search of the Office [was] conducted by Special Agents [with] no substantive role in the investigation of Rep. Jefferson. The Supreme Court has made clear that the two elements of the privilege-Speech or Debate and question[ing]-must be read broadly to effectuate its purposes. United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. Phone: (202) 225-2915 Visitors with official business appointments may enter the U.S. Capitol Visitor Center beginning at 7:15 a.m. House Office Buildings (Cannon, Ford, Longworth, Rayburn) 2172 RHOB (Foreign Affairs Committee) The compelled disclosure of legislative materials to FBI agents executing the search warrant was not unintentional but deliberate-a means to uncover responsive non-privileged materials. at 419, the court concluded that document production threatened to distract the two Members from their legislative duties, see id. Please visit https://www.loc.gov/visit for more information on visiting the Library of Congress. Neither party suggests that the return of the indictment divests this court of jurisdiction or renders this appeal moot or urges that the court not proceed to decide this appeal.2 Cf. As we note below, this possibility is not applicable to the present case. at 421 (quoting MINPECO, 844 F.2d at 859 (quoting Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. at 660, amounts to prohibited question[ing] because the Clause embodies a broad non-disclosure privilege, Maj. Op. Such additional sums eventually exceeded $99 million. House Triangle (East Front) HC-8 WebCONTACT: 2329 Rayburn House Office Building, Washington DC 20515-1302, COMMITTEE: Committee on Energy and Commerce. See infra pp. Rayburn House Office Building - Main entrance, horseshoe drive off South Capitol Street. The grandson of a cattle rancher and the son of a firefighter, Kevin grew up a working-class family and is committed to preserving and promoting the American dream for hardworking Americans. 201 (bribery of public official), 18 U.S.C. CVC-217 (South Congressional Meeting Room) The House Galleries are closed when the House is out of session and during all Pro Forma sessions. There is no indication that the Executive did not act based on a good faith interpretation of the law, as reflected in the district court's prior approval and later defense of the special procedures set forth in the warrant affidavit. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents. As a result of the 2002 Amendments, Rule 41(e) now appears with minor stylistic changes as Rule 41(g). In March 1955, House Speaker Sam Rayburn introduced an amendment for a third House office building, although no site had been identified, no architectural study had been done, and no plans prepared. 137-38. The Clause provides that for any Speech or Debate in either House [t]he Senators and Representatives shall not be questioned in any other Place. U.S. Const. Execution of the warrant necessarily required the FBI agents to separate unprivileged responsive records from privileged records of legislative acts. Statuary Hall In concluding that there is no reason to believe that the [nondisclosure rule] does not apply in the criminal as well as the civil context, Maj. Op. Indeed, the application accompanying the warrant contemplated it. The email address cannot be subscribed. Cf. Gravel's holding that the Clause does not immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes is replete with observations that the Clause provides no protection for criminal conduct performed at the direction of the [Member] or done without his knowledge by an aide. 2020 RHOB (Ways and Means Committee) Find event and ticket information. Technical Standards for Web-based Intranet and Internet Information and Applications (. The court instructed the district court to: (1) copy and provide the copies of all the seized documents to the Congressman; (2) using the copies of computer files made by [the Executive], search for the terms listed in the warrant, and provide a list of responsive records to Congressman Jefferson; (3) provide the Congressman an opportunity to review the records and, within two days, to submit, ex parte, any claims that specific documents are legislative in nature; and (4) review in camera any specific documents or records identified as legislative and make findings regarding whether the specific documents or records are legislative in nature. Remand Order at 1. Fax: (202) 225-0096, 2421 Rayburn House Office Building WebWashington, D.C. Office 2412 Rayburn House Office Building Washington, DC 20515 2167 RHOB (Transportation and Infrastructure Committee) David Schweikert is serving his seventh term in the United States Congress. The district court found probable cause for issuance of the search warrant and signed it on May 18, 2006, directing the search to occur on or before May 21 and the U.S. Capitol Police to provide immediate access to Room 2113. This system allows the Rayburn building to be connected to most of the Congressional office buildings on Capitol Hill via tunnel (the Ford House Office Building is freestanding and attached to no other structures by tunnel). Rayburn Horseshoe Entrance The historical record utterly devoid of Executive searches of congressional offices suggests the imposition of such a burden will be, at most, infrequent. at 114. Web2312 Rayburn House Office Building Washington, DC 20515 Phone: (202) 225-8220 Long Beach Office 4201 Long Beach Blvd, Suite 422 Long Beach, CA 90807 Phone: (310) 831-1799 South Gate City Hall Office 8650 California Ave South Gate, CA 90280 Phone: (310) 831-1799 Carson City Hall Office 701 E. Carson St Carson, CA 90745 Phone: (310) 831-1799 But indications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do-and this is true whether or not the documents are sought for the purpose of inquiring into (or frustrating) legislative conduct or to advance some other goals We do not share the Third Circuit's conviction that democracy's limited toleration for secrecy is inconsistent with an interpretation of the Speech or Debate Clause that would permit Congress to insist on the confidentiality of investigative files. at 36. Compare Amicus Br. 9. UNITED STATES of America, Appellee v. RAYBURN HOUSE OFFICE BUILDING, ROOM 2113, WASHINGTON, D.C. 20515, Appellant. The indictment included charges of racketeering, solicitation of (and conspiracy to solicit) bribes, money laundering, wire fraud, and obstruction of justice.1 Trial is scheduled to begin with jury selection in January 2008. He is also the Lead House Republican on the bicameral Joint Economic Committee, co-chairs the Valley Fever Task Force with Speaker Kevin McCarthy, and is the Republican Co-Chair of the Blockchain Caucus, Telehealth Caucus, Singapore Caucus, and the Caucus on Access to Capital and Credit. 8. at 37-38. at 13-22; U.S. Const. He argued, inter alia, that the issuance and execution of the search warrant violated the Speech or Debate Clause and sought an order enjoining FBI and Justice Department review or inspection of the seized materials. H-217 (Speaker's Ceremonial Office) Our concurring colleague takes much the same approach, failing to distinguish between the lawfulness of searching a congressional office pursuant to a search warrant and the lawfulness of the manner in which the search is executed in view of the protections afforded against compelled disclosure of legislative materials by the Speech or Debate Clause. According to the brief for the Executive, the Attorney General ordered the FBI to regain custody of the seized materials and imposed an immediate freeze on any review until the district court and this court considered the Congressman's request for a stay pending appeal. 6562, the bipartisan FORWARD Act with fellow Co-Chairman Congressman David Schweikert (AZ-6) and Task Force Members Congresswoman Martha McSally (AZ-2), Congresswoman Karen Bass (CA-37), and Congresswoman Kyrsten Sinema (AZ-9). 919 (1913) (under Fifth Amendment [a] party is privileged from producing the evidence, but not from its production). at 421. This blocky monolith occupying an entire city square on Washington, D.C.s Capitol Hill is the Rayburn building, built in the 1960s as new office space for the House of Representatives. Its design frequently evokes soliloquies on monstrous, soul deadening, and fascist architecture. It found no functional difference between compelling a Member to be questioned orally and compelling him to produce documents in response to a subpoena. According to the brief for the Executive, the Office of the Deputy Attorney General directed an immediate freeze on any review of the seized materials. at 47. Most important, to construe the Speech or Debate Clause as providing an absolute privilege against a seizure of non-privileged materials essential to the Executive's enforcement of criminal statutes pursuant to Article II, Section 3 on no more than a generalized claim that the separation of powers demands no less would, as the Supreme Court has observed, albeit as to a qualified privilege, upset the constitutional balance of a workable government. Nixon, 418 U.S. at 707, 94 S.Ct. Opinion concurring in the judgment filed by Circuit Judge HENDERSON. WebRayburn House Office Building. Id. 367, 92 L.Ed. 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. See Brewster, 408 U.S. at 516, 92 S.Ct. at 418 (italics omitted), the court held that [a] party is no more entitled to compel congressional testimony-or production of documents-than it is to sue congressmen, id. Cf. HVC-201 A&B The FBI agents seized and carried away two boxes of documents and copies of the hard drives and electronic data. If Executive Branch exposure alone violated the privilege, agents could not conduct a voluntary interview with a congressional staffer who wished to report criminal conduct by a Member or staffer, because of the possibility that the staffer would discuss legislative acts in describing the unprivileged, criminal conduct. Appellee's Br. of Hon. 657-61. 6. 1324 LHOB (Natural Resrouces Committee) 2128 RHOB (Financial Services) That does not mean that the Executive Branch is without power to execute such a warrant; it just as likely indicates that never before has the Executive Branch found its use necessary. "[2] 749, 15 L.Ed.2d 681 (1966). Brewster, 408 U.S. at 510, 92 S.Ct. In essence, therefore, what the Clause promotes is the Member's ability to be open in debate-free from interference or restriction-rather than any secrecy right. 2123 RHOB (Energy and Commerce Committee) The FBI agents were to review and seize paper documents responsive to the warrant, copy all electronic files on the hard drives or other electronic media in the Congressman's office, and then turn over the files for review by a filter team consisting of two Justice Department attorneys and an FBI agent. (former counsel to the U.S. House of Representatives and the Senate and scholars) at 28-29 (same). HC-5 at 616-17 (describing aide as Member's alter ego[]). Moreover, Rep. Jefferson's proposed method of warrant execution-first sealing his office and allowing him to separate privileged from non-privileged records-effectively eliminates the distinction between a search warrant and a subpoena. House Committee on Science, Space, and Technology Republicans 2321 Rayburn House Office Building Washington, DC 20515 Phone: 202-225-6371 Fax: 202-226-0113 Having found probable cause to believe that Rep. Jefferson's congressional office contains property constituting evidence of the commission of bribery of a public official, wire fraud[,] bribery of a foreign official [and] conspiracy to commit these crimes and having issued a search warrant aimed solely at such evidence, see Warrant Aff. No. While the Executive characterizes what occurred as the incidental review of arguably protected legislative materials, Appellee's Br. Ford House Office Building - Entrance on 3rd Street, SW, near intersection with D Street, SW. Russell Senate Office Building - Delaware entrance on ground level closest to Constitution Avenue. They include 18 U.S.C. United States v. Albinson, 356 F.3d 278, 279 n. 1 (3d Cir.2004). 371; Count 2, Conspiracy to Solicit Bribes by a Public Official, Deprive Citizens of Honest Services by Wire Fraud, id. 2531. Accordingly, while I concur in the judgment which affirms the district court's denial of Representative William J. Jefferson's (Rep.Jefferson) Rule 41(g) motion, I do not agree with the majority's reasoning and distance myself from much of its dicta. This court, upon consideration of the Congressman's emergency motion for a stay pending appeal filed on July 20, 2006, enjoined the United States, acting through the Executive, from resuming its review of the seized materials. Contrary to the Executive's understanding on appeal, it is incorrect to suggest that Congressman Jefferson's position is that he was entitled to prior notice of the search warrant before its execution, without regard to the Executive's interests in law enforcement. at 38. 2154 RHOB (Oversight and Government Reform Committee) Thus, in the criminal context the Supreme Court has indicated that it is the Executive Branch's evidentiary use of legislative acts, rather than its exposure to that evidence, that violates the Clause. Nor has the Congressman argued that his assertions of privilege could not be judicially reviewed, only that the warrant procedures in this case were flawed because they afforded him no opportunity to assert the privilege before the Executive scoured his records. The warrant was lawfully issued because it does not seek evidence of [a] legislative act generally done in Congress in relation to the business before it, United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. The Executive acknowledges, in connection with the execution of a search warrant, that there is a role for a Member of Congress to play in exercising the Member's rights under the Speech or Debate Clause. [1] Congressional leaders inserted a gymnasium into the building plans, a fact that was not publicly known at the time of construction. The FBI agents' execution of the warrant on Rep. Jefferson's congressional office did not require the latter to do anything and accordingly falls far short of the question[ing] the court in Brown & Williamson found was required of a Member in response to a civil subpoena. The 1989 Advisory Committee Notes to Rule 41(e)6 state: No standard is set forth to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. 2118 RHOB (Armed Services Committee) H-137 Hallway See generally 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 3918.4 (2d ed.1992). With respect to our precedent, moreover, the government asserts that Brown & Williamson itself distinguished between civil subpoenas and criminal proceedings, and limited its holding to the former. Id. As [t]he laws of this country allow no place or employment as a sanctuary for crime, Williamson v. United States, 207 U.S. 425, 439, 28 S.Ct. Clearly a remedy in this case must show particular respect to the fact that the Speech or Debate Clause reinforces the separation of powers and protects legislative independence. Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 8 (D.C.Cir.2006) (en banc) (collecting cases). Although the Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 558, 97 S.Ct. The Justice Department, therefore, could regain custody of the seized materials and resume review as of July 10, 2006. 2358RHOB (Appropriations) of Hr'g, June 16, 2006, at 35; see Appellant's Br. The OCAS can assist with questions regarding accessibility issues in the U.S. Capitol, U.S. House of Representatives, and U.S. Senate. Today, Congressman Kevin McCarthy and Congressman David Schweikert (AZ-06) sent a letter to the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration (FDA) requesting the FDA hold public workshops to help with the development of Valley Fever drugs and vaccines. The distinction is what these fourteen pages discuss. Unlike the majority, however, I believe that neither the Supreme Court nor Brown & Williamson holds that the Clause precludes Executive Branch execution of a search warrant. 2531; see Fields, 459 F.3d at 9. The Speech or Debate Clause protects against the compelled disclosure of privileged documents to agents of the Executive, but not the disclosure of non-privileged materials. 783, 95 L.Ed. Johnson, 383 U.S. at 178, 86 S.Ct. 654, 7 L.Ed.2d 614 (1962)); In re Search of the Premises Known as 6455 South Yosemite, 897 F.2d 1549, 1554-56 (10th Cir.1990); United States v. Mid-States Exchange, 815 F.2d 1227, 1228 (8th Cir.1987) (per curiam). 1343 and 1346; Count 11, Foreign Corrupt Practices Act, 15 U.S.C. July 28, 2006). On May 18, 2006, the Department of Justice filed an application for a search warrant for Room 2113 of the Rayburn House Office Building, the congressional office of Congressman William J. Jefferson. See Warrant Aff. 1334 LHOB, Rayburn Foyer With respect, I believe they vastly over-read Brown & Williamson. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Congressional office building for the U.S. House of Representatives, View of Rayburn Office from United States Capitol dome (2007), Powers, privileges, procedure, committees, history, media, https://www.gao.gov/assets/190/188219.pdf, "FBI Raid on Lawmaker's Office Is Questioned", "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution? The bar on compelled disclosure is absolute, see Eastland, 421 U.S. at 503, and there is no reason to believe that the bar does not apply in the criminal as well as the civil context. 2200 RHOB (Foreign Affairs Committee) See Brown & Williamson, 62 F.3d at 418-19 (citing MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 857-59 (D.C.Cir.1988)). at 660, in Brown & Williamson we relied heavily on the Clause's purpose-shielding the legislative process from disruption-in reading the Clause's prohibition of question[ing] broadly to protect the confidentiality, see Brown & Williamson, 62 F.3d at 417-21, of records from the reach of a civil subpoena. 2. o Longworth Take elevators to the basement level and follow signs to Cannon or Rayburn. By creating the Filter Teams and [b]y requiring judicial approval before any arguably privileged documents could be shared with the prosecution team, the search procedures as a whole eliminated any realistic possibility that evidence of Rep. Jefferson's legislative acts would be used against him. Appellee's Br.
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