Letter from Robert P. Trout, supra note 2. 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. Letting the district court's decision stand until after the Congressman's trial would, if the Congressman is correct, allow the Executive to review privileged material in violation of the Speech or Debate Clause. This procedure is significantly different even from those the Executive has on occasion afforded to other privileges not protected in the Constitution; for example, in United States v. Search of Law Office, 341 F.3d 404, 407 (5th Cir.2003), the privilege holder was allowed an opportunity to identify documents protected under the attorney-client privilege at the point the search was completed. Unlike the Brown & Williamson dicta, Gravel's discussion of the Clause's applicability to Members should direct our analysis. On June 4, 2007, the grand jury returned a sixteen-count indictment against Congressman Jefferson in the Eastern District of Virginia. at JA 80. 3090 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 1813, 44 L.Ed.2d 324 (1975))). 7. 41(g), does not affect DiBella's controlling force, which balanced the individual and government interests and their relationship to trial delays or disruptions, 369 U.S. at 124, 126, 129, 82 S.Ct. 2072 *formerly B-366* (House Radio-TV Gallery) 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. Although the Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 558, 97 S.Ct. Language links are at the top of the page across from the title. Additionally, with respect to concern about future actions by the Executive, this is the only time in this Nation's history that the Executive has searched the office of a sitting Member of Congress. In drafting the Speech or Debate Clause, the Framers drew upon English history and the long struggle for parliamentary supremacy against Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators from publicly opposing the Crown. Although the Congressman's further request is solely for the return of property, his Rule 41(g) motion is tied to a criminal prosecution in esse against the movant, DiBella, 369 U.S. at 132, 82 S.Ct. 2175 RHOB (Education and the Workforce Committee) 2358RHOB (Appropriations) 367, 92 L.Ed. Our task is to determine how to reconcile the scope of the protection that is afforded to a Member of Congress under the Speech or Debate Clause with the Executive's Article II responsibilities for law enforcement. 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. With respect, I believe they vastly over-read Brown & Williamson. Indeed, the application accompanying the warrant contemplated it. 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. Please vist Alert DC at alert.dc.gov to sign up. See Maj. Op. The search of Congressman Jefferson's office must have resulted in the disclosure of legislative materials to agents of the Executive. David Schweikert is serving his seventh term in the United States Congress. This too should ameliorate concerns about deterrence. The chart below shows the rooms used by Presidents and nominees whose careers included House service after 1908, when the first House office building opened. 749 (Clause protect[s] [the legislature] against possible prosecution by an unfriendly executive and conviction by a hostile judiciary). Beginning with the observation that the prohibition in the Speech or Debate Clause is deceptively simple, this court held in Brown & Williamson, 62 F.3d at 415, that the Clause includes a non-disclosure privilege, id. Yet, as the district court noted, the difference between a warrant and a subpoena is of critical importance here. Rayburn, 432 F.Supp.2d at 111. House Committee on Science, Space, and Technology Republicans 2321 Rayburn House Office Building Washington, DC 20515 Phone: 202-225-6371 Fax: 202-226-0113 See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C.Cir.1995). 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. Office of Congressional Accessibility Services: Office of Congressional Accessibility Services, Web Content Accessibility Guidelines, version 2.1. The execution of a valid search warrant is an exercise of executive power, United States v. Grubbs, 547 U.S. 90, 126 S.Ct. at 626. They will open 30 minutes prior to the session and will remain open until adjournment each day. Leasing Corp. v. United States, 429 U.S. 338, 359-60, 97 S.Ct. Please be as specific as possible in your description of the problem(s) encountered as well as the location on the website. The U.S. Capitol is open to the public for tours Monday Saturday from 8:30 a.m. 4:30 p.m. The cornerstone was laid in May 1962, and full occupancy began in February 1965. at 512, 92 S.Ct. Id. Washington, DC 20515 See Rayburn, 432 F.Supp.2d at 111-12. 62 F.3d at 419-20 (distinguishing Gravel's criminal context from civil subpoena). There are a variety of services available to people visiting the Capitol and to those visiting online. See Warrant Aff. When all of the brush is cleared away, this case presents a simple question: can Executive Branch personnel-here, special agents of the Federal Bureau of Investigation-execute a search warrant directed to the congressional office of a Member of the Congress (Member) without doing violence to the Speech or Debate Clause (Clause) set forth in Article I, Section 6, Clause 1 of the United States Constitution? The Office of Congressional Accessibility Services (OCAS) provides a variety of services for individuals with disabilities. Open 7:30a.m. 5:00 p.m. daily, including all weekends and holidays. On July 10, 2006, the district court denied the Congressman's motion for return of the seized materials. 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. See infra pp. [3], On May 20, 2006 FBI agents raided the Rayburn Building office of Democratic Congressman William J. Jefferson in connection to an ongoing bribery investigation, marking the first time the FBI had raided the office of a sitting congressman. Task Force Co-chairs Leader McCarthy and Rep. Schweikert hold press conference to announce NIH trial studying the efficacy of Fluconazole in treating Valley Fever at Banner University Medical Center in Phoenix, Arizona on October 17, 2016. Rayburn Foyer. at 420-21. In order to maximize accessibility, this site has been designed to conform with: House.gov includes code and content provided by third parties. 371; Counts 3 & 4, Solicitation of Bribes by a Public Official, id. at 660, the government expressly argues that [t]he execution of a search warrant is far removed from the core concerns animating the Clause, Appellee's Br. 2614.9 The core activity protected by the Clause-speech in either chamber of the Congress-is a public act. 2614, to the existence of criminal proceedings against persons other than Members of Congress at least suggest that the testimonial privilege might be less stringently applied when inconsistent with a sovereign interest. Brown & Williamson, 62 F.3d at 419-20. 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). 2359 Rayburn House Office Building, Washington, DC 20515 Organizational Meeting for the 118th Congress Watch on Fiscal Year 2023 United States Navy and Marine Corps Budget Wed, 05/18/2022 - 10:00am 2362-A Rayburn House Office Building, Washington, DC 20515 Fiscal Year 2023 Budget Request for the Department of All rights reserved. Statuary Hall Every Library of Congress visitor must reserve timed-entry passes in order to maintain safe capacity levels in the Thomas Jefferson Building. 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. Phone: (202) 225-4511. 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? Popular burger chain Steak n Shake has opened its first location in the District, and its inside the Rayburn House Office Building. In contrast, a search warrant requires that the individual whose property is to be searched do nothing affirmative. It also serves as a holding room for visiting officials attending joint sessions of Congress. 13. 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. However, this court has. 2172 RHOB (Foreign Affairs Committee) 436 (1948), and, upon that official's finding of probable cause, the warrant authorizes Government officers to seize evidence without requiring enforcement through the courts, United States v. Miller, 425 U.S. 435, 446 n. 8, 96 S.Ct. Fax: (202) 225-2908 The court also acknowledged that the Supreme Court's sensitivities in Gravel, 408 U.S. at 614, 92 S.Ct. 749; see also Tenney, 341 U.S. at 372, 71 S.Ct. That holding prohibited the production of certain records in a congressional subcommittee's possession in response to a civil subpoena. 783, 95 L.Ed. at 663. Open 10:00 a.m. 5:00 p.m. daily, including all weekends and holidays.National Garden These services include adaptive tours of the Capitol building, wheelchair loans, and interpreting services for individuals who are deaf or hard 137-38, the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or politically sensitive and non-responsive items, id. 2154 RHOB (Oversight and Government Reform Committee) of Thomas S. Foley, Newt Gingrich and Robert H. Michel (former Speakers of the U.S. House of Representatives) at 27-30 (suggesting specific alternative procedures for search of congressional offices); Amicus Br. The court ordered expedition of this appeal, id., and oral argument was heard on May 15, 2007. 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. More comprehensive informationincluding assistive listening devices, public TTY locations, tour details, service animals, family restrooms, and a shuttle to Capitol Visitor Centeris available from the Architect of the Capitol. 2531. While the Executive characterizes what occurred as the incidental review of arguably protected legislative materials, Appellee's Br. R. Crim. 2113 Washington, D.C. 20515, 432 F.Supp.2d 100, 113 (D.D.C.2006), the district court noted that the warrant sought only materials that were outside of the legitimate legislative sphere, id. 334 CHOB (Veterans' Affairs Committee) See id. Copyright 2023, Thomson Reuters. The Executive offers that the special procedures described in the warrant affidavit are more than sufficient to protect Rep[resentative] Jefferson's rights under the Clause, Appellee's Br. 2059 Rayburn House Office Building Washington, D.C. 20515 1512(c)(1); Count 16, Racketeer Influenced Corrupt Organization, Pattern of Racketeering Activity (RICO), id. The distinction is what these fourteen pages discuss. Phone: (202) 225-2915 3090, 41 L.Ed.2d 1039 (1974) (citing Speech or Debate Clause cases to illustrate judicial power to define scope of executive privilege); cf. HSEMA, on behalf of the USCP, may target specific, nearby neighborhood user groups, such as the Capitol Hill user group, with important information. at 524-25 (reasoning that financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation). For construction of the Rayburn House Office Building, the Congressional bill appropriated $2 million plus "such additional sums as may be necessary." See Appellant's Br. I, 6, cl. Cannon House Office Building - Entrance on New Jersey Avenue, SE, south of the terrace at the intersection with Independence Avenue. 201(b)(2)(A); Counts 5 to 10, Scheme to Deprive Citizens of Honest Services by Wire Fraud, id. The version of the Clause adopted by the Founders closely resembles the language adopted in the English Bill of Rights of 1689, which came out of the long struggle for governmental supremacy between the English monarchs and the Parliament, during which the criminal and civil law were used to intimidate legislators. Services include, but are not limited to, wheelchair loans, sign language interpreting services, and adaptive tours. 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. at 421. Id. 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. 8. Committees Committee and Subcommittee Assignments. 1619, 48 L.Ed.2d 71 (1976). * This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Noting that the purpose of the Speech or Debate Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently, without regard to the distractions of private civil litigation or the periods of criminal prosecution, id. During significant planned or no-notice events, the Department may contact HSEMA with certain messages, such as for major road closures, police activity, and life-safety events. 1100 LHOB (Ways and Means Committee) at 660, amounts to prohibited question[ing] because the Clause embodies a broad non-disclosure privilege, Maj. Op. See id. There is no dispute that the issuance of the search warrant for Rep. Jefferson's congressional office does not violate the Clause. To go to Rayburn, you must take the escalator down to the Rayburn sub-basement. 2141 RHOB (Judiciary Committee) The Executive does not argue otherwise; the search warrant sought only materials not protected by the Speech or Debate Clause. My colleagues qualify Brown & Williamson's reference to Gravel, noting it [was] not a Member who [was] subject to criminal proceedings or process in Gravel. at 660. 1334 LHOB, Rayburn Foyer It is closed on Sundays, Thanksgiving Day, Christmas Day, New Year's Day, and Inauguration Day. However, while the interior design of the other House Office Buildings retains decor one would expect to see in House Office Buildings (with cherry wood paneling, brass railings, and marble floors), the Rayburn building possesses design style parallel to that of the 1960s, with chrome push bars, clocks, and elevators, and space-age fluorescent lighting fixtures. 1425, 18 L.Ed.2d 577 (1967)); see also Johnson, 383 U.S. at 179, 86 S.Ct. Contact us. WebWashington D.C. Office 2312 Rayburn House Office Building Washington, DC 20515 at 14, 62-63, that no FBI agent or other Executive agent has seen any electronic document that, upon adjudication of the Congressman's claim of privilege, may be determined by the district court to be privileged legislative material. The U.S. House of Representatives is fully accessible to people with disabilities. 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 seized documents were subject to the Speech or Debate Clause privilege or other privilege. And while it is true that, once it attaches, the Clause is an absolute bar to interference with legislators, Eastland, 421 U.S. at 503, 95 S.Ct. Id. 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). They include 18 U.S.C. Please try again. There would appear to be no reason why the Congressman's privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement. Both also emphasized that the search warrant sought only non-privileged materials as a basis for distinguishing Brown & Williamson, and looked to the procedural protections afforded by the issuance of a valid search warrant available only in criminal investigations as eliminating any threat to Congress's capacity to function effectively. Learn more about FindLaws newsletters, including our terms of use and privacy policy. 371; Count 2, Conspiracy to Solicit Bribes by a Public Official, Deprive Citizens of Honest Services by Wire Fraud, id. See United States v. Rostenkowski, 59 F.3d 1291, 1296-1300 (D.C.Cir.1995). Art. For months, the government repeatedly tried and failed-due in part to Rep. Jefferson's invocation of his Fifth Amendment right-to obtain records in his congressional office via a series of subpoena duces tecum. 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. Washington, D.C. Today, Congressman and Congressional Valley Fever Task Force Co-Chair Kevin McCarthy, U.S. Center Steps Hallway Area Studio C 919 (1913) (under Fifth Amendment [a] party is privileged from producing the evidence, but not from its production). We declared that [d]ocumentary evidence can certainly be as revealing as oral communications, providing clues as to what Congress is doing, or might be about to do, id. HC-5 Unlike the Congressman's request for the return of legislative materials protected by the Speech or Debate Clause, the further claim for the return of all non-privileged materials is not independent of the criminal prosecution against him, especially if the legality of the search will be a critical issue in the criminal trial. No. Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13-16 (D.C.Cir.2006) (affirming denial of Member's motion to dismiss on Speech or Debate Clause ground but noting that even [w]hen the Clause does not preclude suit altogether, it may preclude some relevant evidence) (en banc), cert. 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. Moreover, the FBI agents responsible for the search of Rep. Jefferson's congressional office went to great lengths to minimize disruption8 by, inter alia, executing the warrant when the Congress was not meeting, imaging computer hard drives rather than searching the computers, using specific search terms for both paper and electronic records and, most important, creating Filter Teams-one for paper records and one for electronic records-and ensuring subsequent in camera judicial review to minimize exposure to privileged records. Although the search of Congressman Jefferson's paper files violated the Speech or Debate Clause, his argument does not support granting the relief that he seeks, namely the return of all seized documents, including copies, whether privileged or not. 2. Taking his assertions in reverse order, such relief is unnecessary to deter future unconstitutional acts by the Executive. at 421. The special procedures described in the warrant affidavit called for review by FBI agents and the several members of the Justice Department filter team before the Congressman would be afforded an opportunity to identify potentially privileged materials. The southwest tunnel is currently closed as part of a major 10-year renovation of the Cannon House Office Building. We agree, for the Executive retains in its possession seized materials, including complete copies of every computer hard drive in Room 2113, which contain legislative material.3 See City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. [T]he physical search of the Office [was] conducted by Special Agents [with] no substantive role in the investigation of Rep. Jefferson. The gym is below the sub-basement level, in a level of the underground parking garage, and according to The Hill, a newspaper focused on Capitol Hill, "features dozens of cardio machines outfitted with TV screens, an array of Cybex weightlifting machines and free weights. Brown & Williamson, 62 F.3d at 416. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. The Galleries will open 30 minutes prior to the beginning of the session. As Gravel noted, his aide's privilege derives from the Member's. 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. 657-58. 151 (1763)), I would conclude that the Speech or Debate Clause does not bar the Executive Branch's execution of a search warrant on a congressional office and, accordingly, deny Rep. Jefferson's Rule 41(g) motion.13. 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. 1. On May 26, 2006, at 10:30 am local time, there were reports of the sounds of gunfire in the garage of the building. HVC-201 A&B Cf. 78dd-2(a); Counts 12-14, Money Laundering, 18 U.S.C. 390 CHOB (Cannon Caucus Room), Longworth Lobby Stakeout East If the Senate is in session past 4 p.m., one U.S. Capitol Police security screening area will be open in the Capitol Visitor Centers north screening area to accommodate Gallery access. WebIf you are looking for our District Office contact information, you can view our Offices page. He holds a seat on the Ways and Means Committee and is the current Chairman of the Oversight Subcommittee. Opinion for the Court filed by Circuit Judge ROGERS. denied, Office of Sen. Mark Dayton v. Hanson, 550U.S. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C.Cir.1995) (Clause barred enforcement of subpoenas duces tecum issued to two members of House Subcommittee on Health and Environment); Maj. Op. Presidents are identified in bold. at 661. at 616-17 (describing aide as Member's alter ego[]). The U.S. House of Representatives does not control or guarantee the accuracy, relevance, timeliness, or completeness of this third-party information. at 528. at 420. Dirksen Senate Office Building - First Street and C Street entrance. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Rayburn was completed in early 1965 and is home to the offices of 169 representatives. Earlier efforts to provide space for the House of Representatives had included the construction of the Cannon House Office Building and the Longworth House Office Building. ", "Appeals Court: Raid on Jefferson's Office Violated Constitution", General George Washington Resigning His Commission, First Reading of the Emancipation Proclamation of President Lincoln, Scene at the Signing of the Constitution of the United States, George Washington and the Revolutionary War Door, Westward the Course of Empire Takes Its Way, Emergency Planning, Preparedness, and Operations, https://en.wikipedia.org/w/index.php?title=Rayburn_House_Office_Building&oldid=1109268358. HVC-210 (Speaker's Hearing Room) 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). at 415 (quoting Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 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. 10. of Hr'g, June 16, 2006, at 35; see Appellant's Br. Thus, our opinion in Brown & Williamson makes clear that a key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put. at 660, again begs the question whether Brown & Williamson's non-disclosure rule applies to criminal matters at all. 572, 57 L.Ed. 1324 LHOB (Natural Resrouces Committee) See Appellant's Br. Currently, Immuno-Mycologics, Inc. 2059 Rayburn House Office Building See id. at 659. Hours: M-F 9:00am-6:00pm. 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. CVC-200 (Congressional Auditorium), Cannon Rotunda at 13. The following day, the President of the United States directed the Attorney General, acting through the Solicitor General, to preserve and seal the records and to make sure no use was made of the materials and that no one had access to them; this directive would expire on July 9, 2006. For example, in Brewster, a case involving the criminal prosecution of a Member, the Supreme Court described the violation of the Clause that occurred in United States v. Johnson, 383 U.S. 169, 86 S.Ct. And it is, of course, the judiciary, not the executive or legislature, that delineates the scope of the privilege. Any questions should be directed to the administrators of this or any other specific sites. The Speech or Debate protected by the Constitution includes only legitimate legislative activity, see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. The Office of Congressional Accessibility Services (OCAS) provides a variety of services for individuals with disabilities.