Jeffersonian Privilege

The D.C. Circuit ruled this morning on Rep. William Jefferson’s motion to get back the material seized when the FBI searched his congressional office in the Rayburn House Office Building. As is so often the case, the early AP story on the decision sort of missed the boat. It was headlined “Court: FBI Violated Constitution in Raid.” But the actual holding is quite limited. Jefferson gets back originals and copies of all legislative materials, but not anything non-privileged. The court also deferred any decisions about usability of any of that non-privileged material at Jefferson’s upcoming bribery trial; the district court will make that determination in the first instance.

So, the impact for the future seems to be that the Executive can search congressional offices with a warrant, and can do so without tipping off a legislator in advance (potentially allowing destruction of evidence). The only difference is that the Member of Congress has to be there during the search and is permitted to assert his privilege under the Speech and Debate Clause “before the Executive scour[s] his records.” (Slip op. at 15.) I’ll be keen to hear what the real experts on separation of powers think of this opinion.

It is also interesting to contemplate how this apparently narrow practical scope of the legislative branch privilege contrasts with the assertion of executive privilege over the U.S. Attorney firings and related matters.


Some of those congressional investigations also involve alleged lawbreaking (though nobody at the White House is accused of storing tin foil wrappers full of $90,000 in bribes in their freezers as far as we know). The reasons for both privileges are quite similar, too. Here is the court’s discussion of the basis for congressional privilege:

Exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process.

Now here is the letter to Congress from White House Counsel Fred Fielding asserting executive privilege:

[F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch. Presidents would not be able to fulfill their responsibilities if their advisors––on fear of being commanded to Capitol Hill to testify or having their documents produced to Congress––were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions.

The real difference, I suppose, is that Congress can’t get a search warrant or send cops into the White House. Should the two privileges be more parallel? I leave that to the experts.

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1 Response

  1. PatHMV says:

    Interesting you should make the comparison. As the concurring opinion noted in detail, Congressman Jefferson and the House steadfastly refused to comply with subpoenas duces tecum for the documents sought by the FBI. It was only their continued refusal to comply with the subpoenas that the FBI resorted to a search warrant.

    That was the executive branch trump card (although there’s no hint of politics surrounding the investigation of “Dollar” Bill, unlike the allegations against the A.G.). The legislative branch, likewise, has the 2 trump cards of inherent contempt and impeachment.