The May 20 raid of Jefferson’s office in Room 2113 of the Rayburn House Office Building set off a series of political events. Jefferson immediately challenged the action in federal court. House Speaker Dennis Hastert, and House Minority Leader Nancy Pelosi issued “a rare joint statement demanding that the FBI return the documents and saying that Jefferson then should cooperate more fully with the investigation.”[16] “Many Republicans and Democrats contend that the unprecedented raid on a congressional office was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government that are meant to shelter lawmakers from administrative intimidation.”[17] Tensions escalated to the point where, according to AP, Attorney General Alberto Gonzales, his deputy, Paul McNulty, and possibly FBI Director Robert Mueller “were said to be ready to quit if the Justice Department was asked to return the Jefferson documents…[while the] House was threatening to go after the Justice Department’s budget.”[18]
On May 25, President Bush stepped in, taking the extraordinary step of “directing the Department of Justice to seal all the materials recovered from Congressman William Jefferson’s (Democrat-Louisiana) office for the next 45 days and not to allow access to anyone involved in the investigation.”[19]
While members of the Senate seemed to take a more measured view of the raid,[20] on 30 May 2006, Representative James Sensenbrenner, chairman of the House Judiciary Committee began to hold hearings, called “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?”, on the “profoundly disturbing” questions that he said the Justice Department’s actions raised.
The FBI, in answering Jefferson’s complaint of the raid, attached an FBI agent’s affidavit claiming that the raid was necessary because while the FBI was searching his home in August, Jefferson tried to “surreptitiously remove” documents.[21]
An ABC News poll released 1 June 2006 found 86% of Americans supported the FBI’s right to search congressional offices when they obtain a warrant.[22]
On July 10, 2006, Chief Judge Thomas F. Hogan for the United States District Court for the District of Columbia, ruled the FBI raid on Jefferson’s office was legal,[23] rejecting his and the Bipartisan Legal Advisory Group of the United States House of Representatives claim that the search violated the Constitution’s Speech or Debate Clause, separation of powers principle and Fourth Amendment. Chief Judge Hogan, in a 28-page ruling, acknowledged that the “facts and questions of law presented here are indeed unprecedented,” but wrote that it is “well-established” that a Congressman is “generally bound to the operation of the criminal laws as are ordinary persons,” and the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.’”[24] Hogan, in his conclusion, wrote:
"The existing broad protections of the Speech or Debate Clause – absolute immunity from prosecution or suit for legislative acts and freedom from being ‘questioned’ about those acts (including privilege from the testimonial act of producing documents in response to a subpoena) – satisfy the fundamental purpose of the Clause to protect the independence of the legislature. The Court declines to extend those protections further, holding that the Speech or Debate Clause does not shield Members of Congress from the execution of valid search warrants. Congressman Jefferson’s interpretation of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial precedent and will not be adopted here. See Williamson v. United States, 28 S. Ct. at 167 (’[T]he laws of this country allow no place or employment as a sanctuary for crime.’) (quotation omitted).[25]
However, later that same month, a three-judge appellate panel unanimously overruled Hogan’s decision and affirmed that the Department of Justice could not review Rep. Jefferson’s files until he had seen what files were taken and which of those pertained to his work as a legislator. The appellate court directed that Hogan, the judge who originally authorized the controversial search and seizure, should determine if Jefferson’s claims of legislative privilege extend to specific seized files that the lawmaker may cite.[26]
