“They shall in all Cases …”

Finals season is over, but all is not quiet in Law Law Land. It is now time for the write-on competition for positions on the school’s journals, the Loyola of Los Angeles Law Review, the Loyola of Los Angeles International and Comparative Law Review, and the Loyola of Los Angeles Entertainment Law Review. The subject just so happens to involve Amendment IV, which came up obliquely as part of another topic I’ve been keeping my eye on lately: The raid of Congressman William Jefferson’s offices.

I won’t get into the nitty gritty of the particular events, but I wanted to recall a conversation I had with an online friend lately. The friend had said, in part, the following:

Whether or not the warrant is valid is a separate issue from whether or not the search is allowed ab initio. The warrant could have been perfectly valid and any special procedures could have been followed and the search could still be entirely illegal per AI S6.

This is what I wrote in response:

Hrm. Let me restate what I think you’re saying: Regardless of whether or not procedures are in place and followed in order to separate Speeches and Debates material from material required for a major criminal investigation (specifically, AIS6 excepts “Treason, Felon and Breach of the Peace”), the presence of Speeches and Debates material exempts all other materials in the office.

If I’m misunderstanding you, skip the rest of this post and correct me.

If I’m not misunderstanding you, we have 2 issues raised by that interpretation:

  1. Are there ever any circumstances in which a MoC’s office can be searched? What about in case of a bomb scare, in which officers (presumably led by Capitol Police, who report to Congress, but possibly including ATF and/or FBI officers, who report ultimately to the Executive) are called about a possible bomb in one of the offices? Such a thing was unfolding this morning when someone reported that there were gunshots at the Rayburn House Office Building. Capitol Police fielded the call, but FBI were involved as well.

    If there are some circumstances in which a MoC’s office can be searched, what might pose such a circumstance?

  2. AIS6 poses the following (as you’re aware):

    They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.


    1. The privilege from Arrest has nothing to do with “Speech or Debate”.
    2. The exceptions come first. So where a major crime is involved, there is no privilege.
    3. Nowhere does it mention an extraordinary privilege from searches and seizures, except possibly with regard to Speeches and Debates.

It seems to me that Jefferson’s Complaint claims not so much that he is protected by the privilege from Arrest than that his office is immune to searches and seizures because searches and seizures should be interpreted as questioining him about his legislative operations.

From there, I can see another way of getting to your conclusion, that validity of warrant is irrelevant. The core issue, as proposed by Jefferson, seems to be: Searches and seizures of an office which holds legislative material should be interpreted as questioning his speech and debate material.

I think there is definitely an issue of law there. A judge must then consider the practical effects.

  1. If he agrees with the interpretation (i.e., a search of an office, regardless of the target and regardless of procedure, is an unrebuttable per se violation of AIS6), then the following becomes true:
    1. Jefferson wins.
    2. Any Member of Congress can hide evidence of treason and felony in his office and claim immunity.
    3. There would be new issues as to what exigencies, if any, can justify any searches. (That goes back to the item about today’s reported gunfire.)
  2. If he disagrees with the interpretation (i.e., a search of an office, regardless of the target and regardless of procedure, is an unrebuttable per se violation of AIS6), then the following needs to be resolved:
    1. Must searches and seizures be limited to Capitol Police, which report to the Congress?
    2. May Executive Branch officers ever be involved (considering the FBI’s heavy involvement in D.C., it probably would not be practicable to exclude Executive Branch officers entirely)?
    3. Under what circumstances may Executive Branch officers be involved? (Presumably, only when the Judiciary signs off on a warrant; i.e., no unilateral action by the Executive Branch.)
    4. Under what circumstances, if any, may a Judicial Branch officer sign off on a search?

My guess is that no judge will grant absolute immunity of the sort Jefferson seems to be looking for. I also don’t think any judge will lay down an exact rule as to how a search may be conducted. If anything, the court would probably issue a guideline or a balancing test to help future judges decide whether or not appropriate precautions have been and will be taken before signing off on a warrant.

[Cross-posted at Between Worlds]