497 F.3d 654 (D.C. Cir. 2007), 06-3105, United States v. Rayburn House Office Building, Room 2113, Washington, D.C. 20515

Docket Nº:06-3105.
Citation:497 F.3d 654
Party Name:UNITED STATES of America, Appellee v. RAYBURN HOUSE OFFICE BUILDING, ROOM 2113, WASHINGTON, D.C. 20515, Appellant.
Case Date:August 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 654

497 F.3d 654 (D.C. Cir. 2007)

UNITED STATES of America, Appellee

v.

RAYBURN HOUSE OFFICE BUILDING, ROOM 2113, WASHINGTON, D.C. 20515, Appellant.

No. 06-3105.

United States Court of Appeals, District of Columbia Circuit.

August 3, 2007

Argued May 15, 2007

Appeal from the United States District Court for the District of Columbia (No. 06mj00231).

Robert P. Trout argued the cause for appellant. With him on the briefs were

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Amy Berman Jackson and Gloria B. Solomon.

James Hamilton and Robert V. Zener were on the brief for amici curiae Thomas S. Foley, et al. in support of appellant.

Scott Palmer, Elliot S. Berke, and Reid Stuntz, and Philip Kiko, appearing pro se, were on the brief as amici curiae in support of appellant.

David H. Remes and Richard D. Dietz were on the brief for amicus curiae Abner J. Mikva in support of appellant and for reversal.

Gregory L. Poe was on the brief for amici curiae Stanley M. Brand, et al. in support of appellant.

Michael R. Dreeben, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, Darryl Joseffer, Assistant to the Solicitor General, U.S. Department of Justice, Stephan E. Oestreicher, Jr. and Charles E. Duross, Attorneys, and Roy W. McLeese, III, Assistant U.S. Attorney.

Melanie Sloan and Anne L. Weismann were on the brief for amicus curiae Citizens for Responsibility and Ethics in Washington supporting affirmance. Daniel J. Popeo, Paul D. Kamenar, Perry O. Barber were on the brief for amicus curiae Washington Legal Foundation in support of appellee and urging affirmance.

Paul J. Orfanedes and Meredith L. Di Liberto were on the brief for amicus curiae Judicial Watch, Inc. in support of appellee urging affirmation.

Before: GINSBURG, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.

Opinion concurring in the judgment filed by Circuit Judge HENDERSON.

OPINION

ROGERS, Circuit Judge

This is an appeal from the denial of a motion, filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking the return of all materials seized by the Executive upon executing a search warrant for non-legislative materials in the congressional office of a sitting Member of Congress. The question on appeal is whether the procedures under which the search was conducted were sufficiently protective of the legislative privilege created by the Speech or Debate Clause, Article I, Section 6, Clause 1 of the United States Constitution. Our precedent establishes that the testimonial privilege under the Clause extends to non-disclosure of written legislative materials. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). Given the Department of Justice's voluntary freeze of its review of the seized materials and the procedures mandated on remand by this court in granting the Congressman's motion for emergency relief pending appeal, the imaging and keyword search of the Congressman's computer hard drives and electronic media exposed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause, but the review of the Congressman's paper files when the search was executed exposed legislative material to the Executive and accordingly violated the Clause. Whether the violation requires, as the Congressman suggests, the return of all seized items, privileged as well as non-privileged, depends upon a determination of which documents are privileged and then, as to the non-privileged documents, a balancing of the separation of powers underlying the Speech or Debate Clause and the Executive's Article II, Section 3 law enforcement interest in the seized materials. The question of whether the seized evidence must be suppressed under the Fourth Amendment is not before us.

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We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. 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. The Congressman has suggested no other reason why return of such 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 against him while this appeal was pending.

I.

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. The attached affidavit of Special Agent Timothy R. Thibault of the Federal Bureau of Investigation ("FBI") described how the apparent victim of a fraud and bribery scheme who had come forward as a cooperating witness led to an investigation into bribery of a public official, wire fraud, bribery of a foreign official, and conspiracy to commit these crimes. The investigation included speaking with the Congressman's staff, one of whom had advised that records relevant to the investigation remained in the congressional office. Based on the investigation, the affiant concluded that there was probable cause to believe that Congressman Jefferson, acting with other targets of the investigation, had sought and in some cases already accepted financial backing and or concealed payments of cash or equity interests in business ventures located in the United States, Nigeria, and Ghana in exchange for his undertaking official acts as a Congressman while promoting the business interests of himself and the targets. Attachments A and B, respectively, described Room 2113 and the non-legislative evidence to be seized. The affiant asserted that the Executive had exhausted all other reasonable methods to obtain these records in a timely manner.

The warrant affidavit also described "special procedures" adopted by the Justice Department prosecutors overseeing the investigation. According to the affidavit, these procedures were designed: (1) "to minimize the likelihood that any potentially politically sensitive, non-responsive items in the Office will be seized and provided to the [p]rosecution [t]eam," Thibault Aff. ¶ 136, and (2) "to identify information that may fall within the purview of the Speech or Debate Clause privilege, U.S. Const., art. I, § 6, cl. 1 or any other pertinent privilege," id. Essentially, the procedures called for the FBI agents conducting the search to "have no substantive role in the investigation" and upon reviewing and removing materials from Room 2113, not to reveal politically sensitive or non-responsive items "inadvertently seen ... during the course of the search." Id. pp 137-38. 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. Id. ¶ 139. The filter team would determine: (1) whether any of the seized documents were not responsive to the search warrant, and return any such documents to the Congressman; and (2) whether any of the

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seized documents were subject to the Speech or Debate Clause privilege or other privilege. Materials determined to be privileged or not responsive would be returned without dissemination to the prosecution team. Materials determined by the filter team not to be privileged would be turned over to the prosecution team, with copies to the Congressman's attorney within ten business days of the search. Materials determined by the filter team to be potentially privileged would, absent the Congressman's consent to Executive use of a potentially privileged document, be submitted to the district court for review, with a log and copy of such documents provided to the Congressman's attorney within 20 business days of the search. The filter team would make similar determinations with respect to the data on the copied computer hard drives, following an initial electronic screening by the FBI's Computer Analysis and Response Team.

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. Beginning on Saturday night, May 20, more than a dozen FBI agents spent about 18 hours in Room 2113. The FBI agents reviewed every paper record and copied the hard drives on all of the computers and electronic data stored on other media in Room 2113. The FBI agents seized and carried away two boxes of documents and copies of the hard drives and electronic data. 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. See Appellee's Br. at 10.

On May 24, 2006, Congressman Jefferson challenged the constitutionality of the search of his congressional office and moved for return of the seized property pursuant to Fed. R. Crim. P. 41(g). 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. The following day, the President of the United States...

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