Congressional Offices FBI Search Ruled Constitutional

Heh.

This isn't really surprising, but I'm betting that jackass Hastert's blood-pressure went way up when he heard this.

A federal judge in Washington Monday ruled that an unprecedented FBI search of a congressman's office on Capitol Hill was constitutional.

Chief U.S. District Judge Thomas Hogan said the search of Rep. William Jefferson, D-La.'s office did not violate the constitutional separation of powers among the three branches of government.

"It is well established ... that a member of Congress is generally bound to the operation of criminal laws as are ordinary persons," Hogan said in his opinion. The section of the Constitution protecting members of Congress from lawsuits or questioning about legislative acts "does not shield members of Congress from valid search warrants," he added.

Hogan denied a motion by Jefferson, supported by a bipartisan U.S. House group as friends of the court, to exclude from the case any evidence gathered in the search of his office in May.

SCOTUSblog adds this:

The congressman, with the support of House leaders, asked the judge to order the return of the materials to him, and to bar the FBI from examining them. The judge denied the return request, and found to be moot the plea to keep the FBI away from the files. Hogan did concede that the unprecedented search raised serious constitutional questions, but he proceeded to answer all of those questions in the FBI's favor.

In the key part of his ruling, the judge drew a distinction for Speech or Debate Clause purposes between a subpoena and a search warrant, when the target is a member of Congress. Producing evidence in response to a subpoena, Hogan said, is a testimonial act, and the Clause provides an absolute testimonial privilege. Having a member's property subjected to execution of a valid search warrant, however, "does not have a testimonial equivalent," so the Clause's privilege was not triggered by the warrant's execution.

"Congressman Jefferson was not made to say or do anything. In fact,...he was not even present at the search....[T]here simply was no compulsory testimony to trigger the privilege."

And

The fact that some privileged material was "incidentally captured by the search," the judge found, "does not constitute an unlawful intrusion."

As to the House leaders' argument that even a federal court could not review the seized materials to determine if the legislative privilege applies, the judge said "the claim...that the Constitution does not allow a document-by-document review by the judiciary fails."

The judge defended his own decision to issue the warrant, rejecting the House leaders' implied suggestion that it would be easy for the Executive Branch to get a warrant from a judge to search legislative offices if this one were upheld. That, Hogan found, was "a gross trivialization of the role of the judiciary. A federal judge is not a mere rubber stamp in the warrant process, but rather an independent and neutral official sworn to uphold and defend the Constitution."

Now I wonder where this will be headed.