The FBI recently executed a search warrant at the Congressional office of Rep. William Jefferson. The Associated Press reports that House leaders think the search may be unconstitutional:
The FBI’s weekend search of the House office of a Louisiana Democrat under investigation for bribery may have overstepped constitutional boundaries, House leaders said as the congressman under investigation pledged to stay in office.
House Majority Leader John Boehner of Ohio told reporters Tuesday that the Congress will somehow speak to ”this issue of the Justice Department’s invasion of the legislative branch. In what form, I don’t know.”
”I’ve got to believe at the end of the day it’s going to end up across the street at the Supreme Court,” Boehner said.
House Speaker Dennis Hastert said the Justice Department had never before crossed a line that separates Congress from the executive branch by searching a congressional office while investigating a member of Congress.
Given that the FBI obtained a warrant, what would the legal theory be that the search was unconstitutional?
I don’t think the Fourth Amendment provides such an argument. If the government can execute a warrant at a newspaper, or at a lawyer’s office, why not a Congressional office? Of course, Congress could pass a law prohibiting searches of Congressional offices, Cf. The Privacy Protection Act, but they haven’t done so.
A more likely theory would be the Speech and Debate clause, Art. I, 6, cl. 1:
The Senators and Representatives . . . 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.
Given that executing a search warrant involves neither an arrest nor questioning, it would seem to me that the Clause isn’t applicable. Further, Gravel v. United States, 408 U.S. 606, 626-27 (1972), seems to suggest that Congress is not generally exempt from criminal process under the Clause:
Article I, 6, cl. 1 . . . does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If [the conduct under investigation] would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation.
At the same time, this is only a snippet, and it’s hard to reach a more definitive conclusion without spending more time looking through the cases. For a good summary of the law, this page at Findlaw is a good start. Are there any Speech and Debate Clause experts out there who would care to comment?