Lawmakers' offices not immune from searches

May 31, 2006|By STEVEN P. GROSSMAN

In a rare demonstration of bipartisan cooperation, House Speaker Dennis Hastert and House Minority Leader Nancy Pelosi together criticized the FBI's search of the office of Rep. William J. Jefferson, the Louisiana Democrat who is under investigation in connection with the alleged acceptance of bribes.

How heartwarming it is that two people who seem to agree on little that can benefit the country have come together to defend the right of their colleagues to have some sort of special immunity from search warrants issued to uncover crimes committed by legislators. They said the investigators, like the investigated, are not above the law. A noble thought, but one that needs to be examined.

The Justice Department did obtain a search warrant to authorize the search of Mr. Jefferson's office. In other words, investigators prepared a sworn statement that demonstrated to a judge that there was probable cause, meaning it was more likely than not that there was evidence of a crime to be found in the congressman's office.

According to an FBI affidavit, agents videotaped Mr. Jefferson meeting about receiving money in exchange for favorable treatment of a business venture in Nigeria. It said he was shown being handed a briefcase containing $100,000 in cash and later was found to have secreted $90,000 in his refrigerator. The New Orleans congressman has not been charged with a crime.

The role of the courts in the warrant process cannot be overstated. The framers of our Constitution wrote the Fourth Amendment to protect us from illegal searches and seizures.

There are two separate and independent requirements the government must meet before it searches a private home or business. The first is that there must be probable cause for the search. The second is that the government must obtain a warrant from a magistrate authorizing and properly limiting the search.

The reason the framers included the warrant requirement was that they saw the courts as the intermediary between the forces of law and order and the citizenry.

They did not want the government intruding on people's privacy rights and freedoms based on a law enforcement officer's determination of whether probable cause existed. It is for this reason that President Bush's arguments in favor of wiretapping and telephone interceptions (considered to be searches under the Fourth Amendment) without seeking proper authorization from a judge have been so widely and correctly criticized.

Despite laws specifically designed to facilitate and speed up the process by which the government can obtain warrants from magistrates always at their disposal for these purposes, the Bush administration has invaded people's privacy rights without obtaining judicial permission. If you want to worry about government overreaching, worry about this.

Some critics of the search have legitimate concerns about the separation of powers between government branches and particularly express concern that such searches can be too political and too broad and can uncover documents not connected with the investigation and which the proper workings of government require to be kept private.

That is why we have courts and why the framers imposed requirements not just to authorize a search but also to ensure that the search is limited in scope and duration. The courts for years have limited searches in this way.

For example, in authorizing searches of newspaper offices for evidence that could assist a criminal investigation, the Supreme Court has made it clear that such searches must be limited in ways designed to minimize the likelihood that material protected by the First Amendment's freedom of the press requirement will be disturbed.

The same type of minimization requirements should be imposed when the courts authorize the search of a legislative office. There is nothing in the Fourth Amendment or case law, however, that immunizes congressional offices from legitimate government searches.

Despite Fourth Amendment protections, abuses can occur in obtaining and executing a search warrant for a legislator's office. But such abuses can and do occur every day when search warrants are used in criminal investigations. Such abuses tell us that we must be more vigilant than we have been in avoiding these abuses. They do not, however, tell us we should stop searching.

Steven P. Grossman, a former New York City prosecutor, is the Dean Julius Isaacson professor at the University of Baltimore School of Law. His e-mail is sgrossman@ubalt.edu.

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