By TONI LOCY, Associated Press Writer
WASHINGTON - A federal judge on Monday upheld the FBI's unprecedented raid of a congressional office, saying that barring searches of lawmakers' offices would turn Capitol Hill into "a taxpayer-subsidized sanctuary for crime."
Chief U.S. District Judge Thomas F. Hogan rejected requests from lawmakers and Rep. William Jefferson to return material seized by the FBI in a May 20-21 search of Jefferson's office.
The overnight search was part of a 17-month bribery investigation of Jefferson, a Louisiana Democrat.
In a 28-page opinion, Hogan dismissed arguments by Jefferson and a bipartisan group of House leaders that the raid violated the Constitution's protections against intimidation of elected officials.
Hogan acknowledged the "unprecedented" nature of the case. But he said the lawmakers' "sweeping" theory of legislative privilege "would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime."
A member of Congress is bound by the same laws as ordinary citizens, said the judge, who had approved the FBI's request to conduct the overnight search of Jefferson's office.
Jefferson had sought the return of several computer hard drives, floppy disks and two boxes of paper documents that FBI agents seized during the 18-hour search of his Rayburn Building office.
Hogan said the Justice Department can retake custody of the materials, which President Bush ordered held by the solicitor general until Congress and the agency could work out procedures for future raids on congressional offices.
Jefferson's lawyer, Robert Trout, said he was not surprised by the ruling and would appeal as soon as possible. Trout is expected to ask Hogan to stay his ruling to keep the materials away from investigators until an appeals court looks at the case.
"While a congressman is not above the law, the executive branch must also follow the law," Trout said. "We appreciate the consideration the judge accorded our motion for the return of the seized property, but we respectfully disagree with his conclusion."
Justice spokesman Brian Roehrkasse said the department was pleased with the judge's decision and said prosecutors would continue discussions with Congress to work out procedures for future raids.
House Democratic leader Nancy Pelosi of California also said Congress will continue to work with the Justice Department on procedures for searches.
Still, "This particular search could have been conducted in a manner that fully protected the ability of the prosecutors to obtain the evidence needed to do their job while preserving constitutional principles," she said.
At issue was a constitutional provision known as the speech or debate clause, which protects elected officials from being questioned by the president, a prosecutor or a plaintiff in a lawsuit about their legislative work.
The raid on Jefferson's office angered members of Congress, some of whom threatened to retaliate by tinkering with the FBI and Justice Department budgets.
Bush stepped in and ordered the solicitor general to take custody for a 45-day "cooling off period," which ended Sunday.
Jefferson has been under investigation since March 2005 for allegedly using his position to promote the sale of telecommunications equipment and services offered by iGate, a Louisville-based firm, that sought contracts with Nigeria, Ghana and other African nations.
In return for his help, Jefferson allegedly demanded stock and cash payments. Jefferson has not been charged and has denied wrongdoing.
An affidavit filed with Hogan to justify the May search says the FBI videotaped Jefferson in August 2005 accepting $100,000 from a business executive, who actually was a government informant. The FBI said it subsequently recovered $90,000 from a freezer at Jefferson's home.
The House leaders told Hogan in a court filing that the Justice Department had overstepped its authority by prohibiting Jefferson's private lawyer, House counsel and the Capitol Police from observing the search of Jefferson's office.
They also complained that agents showed up at the Rayburn Office Building unannounced and demanded that the Capitol Police chief let them into Jefferson's office immediately or they would "pick the office door lock."
Hogan said investigators do not need approval from elected officials or their lawyers to seize possible proof of a crime.
"The power to determine the scope of one's own privilege is not available to any other person, including members of the coequal branches of government: federal judges ... or the President of the United States," the judge said.
He also said judges have a legitimate role to play in ensuring prosecutors don't overstep their authority in investigating legislators.
"A federal judge is not a mere rubber stamp in the warrant process," Hogan wrote, "but rather an independent and neutral official sworn to uphold and defend the Constitution."
Associated Press writers Laurie Kellman and Mark Sherman contributed to this story.
The opinion has even more tough language for Congress. Page 23 of the opinion:
If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Members of Congress to frustrate investigations into non-legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from prosecution.
Update Stolen from the Captains Quarters