*1 UNITED America, Appellee STATES of

RAYBURN HOUSE OFFICE BUILD-

ING, 2113, WASHINGTON, ROOM 20515, Appellant.

D.C.

No. 06-3105.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 15, 2007. Aug.

Decided

Robert P. Trout argued the cause for appellant. him With on briefs were *2 ROGERS, Judge: Circuit B. Solo- and Gloria Jackson Amy Berman mon. aof from the denial appeal an This is the 41(g) Rule of motion, pursuant filed Zener V. and Robert Hamilton James Procedure, Rules of Criminal Thomas Federal curiae for amici the on brief were all materials seized of seeking the return appellant. of support in Foley, et al. S. executing a search upon Executive by the Berke, and Reid Palmer, Elliot S. Scott materials non-legislative for se, Kiko, pro appearing Stuntz, Philip and of sitting of a Member congressional office sup- in amici curiae as the brief on were appeal on The Congress. question appellant. port of which the under procedures the whether Dietz D. Richard Remes and David H. sufficiently were was conducted search curiae Abner amicus for on the brief were creat- legislative privilege protective for and appellant of support in Mikva J. Clause, Article Speech or Debate ed the reversal. the States I, of United Clause Section brief for on the L. Poe was Gregory establishes precedent Our Constitution. Brand, al. in et Stanley M. curiae amici under the the testimonial appellant. of support of written to non-disclosure extends Clause De- Dreeben, Attorney, U.S. R. Michael Brown & Wil- See materials. cause for Justice, Williams, the argued of partment Corp. v. Tobacco liamson were Jef- (D.C.Cir.1995). him on brief the the With Given appellee. F.3d Darryl Attorney, Jo- Taylor, voluntary U.S. freeze frey A. of Justice’s Department General, seffer, to the Solicitor and Assistant seized materials review of the of its Justice, E. Stephan of remand Department on U.S. mandated procedures the Duross, E. Oestreicher, and Charles Congressman’s Jr. granting in this court III, McLeese, As- Roy ap- W. Attorneys, emergency pending and relief for motion Attorney. of keyword imaging sistant and peal, the hard drives computer L. Weismann and Anne Melanie Sloan exposed media and electronic curiae Citi- for amicus were on brief Executive, therefore and material and Ethics Responsibility for zens Debate violate the did not Dan- affirmance. supporting Washington Congress- the review but Kamenar, Perry O. D. Popeo, Paul iel J. was the search files when paper man’s amicus curiae the brief were on Barber material exposed executed support Legal Foundation Washington accordingly violated and the Executive urging affirmance. appellee and as requires, violation Whether Clause. DiL. and Meredith Paul J. Orfanedes return suggests, amicus curiae the brief for were Liberto on non- items, as as well privileged all seized appellee Watch, in support Inc. Judicial upon determination depends privileged, urging affirmation. are which documents, a then, non-privileged GINSBURG, Judge, and Chief Before: un- powers separation balancing of ROGERS, Circuit HENDERSON Speech or Debate derlying the Judges. II, law3 Article the Executive’s Section by Circuit the Court filed Opinion for materi- in the seized interest enforcement

Judge ROGERS. seized of whether question als. under suppressed must be evidence filed judgment concurring Opinion us. not before Amendment Fourth HENDERSON. Judge Circuit We hold that compelled disclosure of already accepted backing financial and or privileged material to the during payments concealed equity cash or in- execution of the Ray- search warrant for terests business ventures located burn House Building Office Room 2113 States, Nigeria, United and Ghana in ex- *3 violated the or Debate Clause and change for undertaking official acts as Congressman the is entitled to the Congressman while promoting the busi- return of documents that the court deter- ness interests of himself and targets. the mines to privileged be under the Clause. B, A Attachments and respectively, de- not, however, hold, doWe in the absence scribed Room non-legislative 2113 and the of a claim Congressman the evidence to be seized. The affiant assert- operations of his office have been disrupt- ed that the Executive had exhausted all ed as a result not having original the other reasonable methods obtain these versions of non-privileged documents, in a timely records manner. that remedying the violation requires also The warrant also affidavit described the return of the non-privileged docu- “special procedures” adopted by the Jus- Congressman ments. The has suggested tice Department prosecutors overseeing no other why reason return of such docu- investigation. According to the affida- required ments is pursuant 41(g) Rule vit, procedures (1) these designed: were and, in any event, it is doubtful that the “to minimize the any likelihood that poten- jurisdiction court has to entertain such tially sensitive, politically non-responsive arguments following the return of the in- items in the Office will be pro- seized and dictment against him while this appeal was vided to [pjrosecution [t]eam,” Thi- pending. ¶ (2) bault Aff. and identify “to infor- that may mation fall purview within the

I. the Speech or Debate Clause privilege, May On the Department of Const., I, 6,§ art. cl. 1 or any other Justice filed an application for a search pertinent privilege,” id. Essentially, warrant for Room 2113 of the Rayburn procedures called for the FBI agents con- House Office Building, congressional ducting the search to “have no substantive Congressman William Jeffer- J. role in investigation” upon and review- son. The attached affidavit Special ing and removing materials from Room Agent Timothy R. Thibault of the Federal 2113, not to reveal politically sensitive or (“FBI”) Bureau of Investigation described non-responsive items “inadvertently seen how apparent victim of a fraud and ... during the course search.” Id. bribery scheme who had come forward as ¶¶ 137-38. The FBI agents were to re- a cooperating witness led to an investiga- view and seize paper respon- documents tion bribery into public official, of a wire warrant, sive to the copy all electronic files fraud, bribery official, of a foreign and on the hard drives or other electronic me- conspiracy to commit these The crimes. dia in the Congressman’s office, and then investigation included speaking with the turn over the files for review a filter Congressman’s staff, one of whom had team consisting of two Department Justice advised that records relevant to the in- ¶ attorneys and an FBI agent. vestigation Id. remained in The (1) filter team office. Based on the would determine: investigation, the af- any fiant concluded that whether there was probable seized documents were cause to responsive believe not warrant, Jeffer- the search and son, acting with targets other return any of the in- such documents to the Con- vestigation, sought had (2) and gressman; some cases' and whether 41(g). He P. to Fed. R. Ckim. pursuant subject to the were seized alio, the issuance inter argued, or oth- Debate Speech or violated of the search execution determined Materials privilege. er sought Debate Clause re- or would be responsive privileged De- FBI and Justice enjoining prose- to the an order dissemination without turned of the seized inspection by the review partment Materials determined team. cution Presi- following day, would be materials. to be team not filter team, directed States of the United prosecution dent over to turned attorney General, the So- acting through Attorney copies General, the search. days preserve seal licitor ten within business *4 to team made by the filter make no use was and to sure determined records Materials would, the absent access that no one had privileged and potentially of the materials be of Executive use on them; expire would consent this directive Congressman’s document, sub- 9, privileged potentially July a 2006. review, with for district court to the

mitted 2006, de 10, the district court July On provided documents of such copy and loga return motion for Congressman’s nied the attorney within 20 Concluding materials. of the seized The filter days of the search. business imper- “did not the warrant of execution determinations make similar would team Congressman Jef with missibly interfere copied the on to the data respect activities,” In re legislative ferson’s drives, following an initial computer hard Bldg. House Rayburn the Search Office of Comput- FBI’s screening the electronic 20515, Washington, D.C. 21 13 Room No. Team. Response Analysis and er (D.D.C.2006), 100, the F.Supp.2d probable cause court found The district the warrant noted court district warrant and the search of for issuance of that were outside sought only materials 18, 2006, the directing May it on signed id. sphere,” legislative “legitimate the 21May and or before occur on search Congress the rejected court The district “provide immedi- Police Capitol the U.S. right to remove that he had man’s claim Beginning on Room 2113. ate access” to before privileged he deemed 20, than a doz- May more Saturday night, warrant, reasoning that the of execution 18 hours spent about agents FBI en was material privileged although “some agents reviewed The FBI 2113. Room and by the search” captured incidentally the hard copied every paper record review,” “the to “incidental subject was and elec- computers on all drives administered properly for a preconditions in Room other media on tronic data stored ma only unprivileged that seeks and carried The FBI seized 2113. legit of sphere the falls outside terial that copies of of documents away two boxes sufficient activity are imate data. Ac- and electronic hard drives the intru against” undue protect Executive, the for the cording to the brief Depart The Justice 114. sion. Id. di- Attorney General Deputy of Office the custody of therefore, regain ment, could any review freeze on an rected immediate resume review materials and the seized Br. Appellee’s See materials. of the seized July On id. at 119. 10, July 2006. See of 10. filed Jefferson 11, 2006, Congressman stay a motion for appeal notice of 2006, Jeffer- May On brief According to the appeal. pending constitutionality of challenged son Attorney General Executive, the office and custody of regain FBI to ordered property the seized moved for return seized imposed materials and an immedi- ords identified as and make ate freeze on findings review until the district regarding whether specific court and this court considered Con- documents or records are gressman’s request stay for a nature.” pending ap- Remand Order at 1. In the meantime, peal. Appellee’s enjoined See Br. at 13. The dis- court the Execu- trict court tive stay July reviewing any denied a on 2006. the seized docu- pending See In re Search ments further order of Rayburn House this court. Bldg. Subsequently, the court Room No. allowed the Exec- Washington, Office (D.D.C.2006). D.C. utive to review seized F.Supp.2d materials that Congressman “has conceded on remand court, upon This consideration of the are under the Congressman’s emergency motion for a Debate Clause.” Order of Nov. stay pending appeal 20, 2006, July filed on expedition court ordered ap- this enjoined States, the United acting through id., peal, argument and oral heard on was Executive, from resuming its review of May July seized materials. See Order days later, 2006. Three court re- June jury On the grand manded record to the district court to *5 a returned sixteen-count indictment “which, make findings regarding any, if against Congressman in Jefferson electronic) (physical re- Eastern District of Virginia. United ... moved from Congressman^] [the] (E.D. Jefferson, States v. No. 07-0209 Va. pursuant to a search warrant execut- 2007). 4, indictment filed June The indict 20, May 2006, ed on are legisla- records of ment charges included of racketeering, so (“Re- tive July acts.” Order of 28, 2006 (and solicit) licitation of conspiracy to Order”). mand The court instructed the bribes, money fraud, laundering, wire and (1) district court to: copy provide justice.1 obstruction Trial is scheduled copies of all the seized documents to the begin jury selection January in (2) Congressman; “using copies of 2008. jurisdiction This court’s of the Con computer by Executive], files made [the gressman’s appeal rests on the collateral search for the warrant, terms listed in the order doctrine. See United v. Ros States provide responsive list of records to tenkowski, 1291, 59 F.3d 1296-1300 (3) Congressman Jefferson”; provide the (D.C.Cir.1995). Neither party suggests Congressman an opportunity to review the that the return of the indictment divests and, days, submit, records within two ex this jurisdiction court of or renders this parte, any claims that specific documents appeal urges moot or that the court not (4) are legislative nature; in “review proceed to appeal.2 decide this In re Cf. any camera specific N., documents or rec- 3021 6th Ave. Billings, MT v. United 1, charged: 2(a); 12-14, The indictment Conspir- Count Money Counts Laundering, 18 acy Official, by Solicit Bribes 1957; Public 15, § U.S.C. Count Obstruction of Jus- Deprive Citizens of by Honest Services Wire tice, 1512(c)(1); 16, § 18 U.S.C. Count Rack- Fraud, and Foreign Corrupt Violate the Prac- eteer Corrupt Organization, Influenced Pat- Act, 371; 2, § tices 18 U.S.C. Conspir- Count (RICO), Racketeering tern Activity id. acy Official, by to Solicit Bribes a Public 1962(c). § Deprive Citizens of Honest Services Wire Fraud, 371; 4, §id. Counts &3 Solicitation III, Roy 2. See from W. Letter McLeese Assis- Official, of Bribes a Public id. Attorney, tant United States to Mark J. Lan- 201(b)(2)(A); 10, § Counts 5 to Scheme to 7, (June 2007); ger, Clerk Letter Robert Deprive Citizens of Honest Services Wire Trout, Esquire, P. Langer, to Mark J. Clerk Fraud, 11, §§ id. 1343 and Count For- (June 11, 2007). Act, eign Corrupt § Practices 15 U.S.C. 78dd-

659 Brewster, Cir.2001). (9th process.” United States States, 1039, tive 237 F.3d in its 408 U.S. Executive retains for the agree, We (1972). Congressman The materials, com L.Ed.2d 507 including seized

possession congressional that offices dispute does not computer hard drive every plete copies of the Fourth subject operation are which contain in Room AM., subject thus to a search Amendment and Pap’s City Erie material.3 See by the to a search warrant issued pursuant ac- court. The Executive (2000); Legal federal district see also Assis L.Ed.2d 265 with the execu- knowledges, connection Asylum Seekers v. Vietnamese tance for warrant, is a State, tion of a search there Dep’t of Congress play (D.C.Cir.), grounds, 519 role for Member vacated on other (1996). rights under the 378, 136 exercising the Member’s L.Ed.2d S.Ct. parties The Speech or Debate Clause. court’s decision stand Letting the district would, that should disagree precisely trial on when until after the correct, any violation of the occur and what effect allow Congressman if the rights should in Member’s privileged material to review contends that the have. The or Debate Clause. violation of the under the Clause exercise of his II. of the con- precede must the disclosure office to tents of his provides Debate Clause any and that violation of of the Executive or Debate in either any Speech “for return of all of the privilege requires House, Congress] shall [Members The Executive offers materials. seized Place.” U.S. questioned other described special procedures *6 Const, I, 6, of the § cl. 1. The version art. more than suffi- warrant affidavit “are the closely by the Founders adopted Clause Representative] Jeffer- protect cient En- language adopted the resembles Clause,” Appel- the rights under son’s 1689, came out Rights Bill which glish 15-16, and that violation of lee’s Br. at governmental su- long struggle the deprive the Execu- privilege the does English monarchs between the premacy non-privileged to retain all right tive of the Parliament, during which the and the scope of the search materials within the to intimi- and civil law were used criminal warrant. By the time of the Con- legislators. date Convention, privilege the em- stitutional spoken has not Supreme Court or Debate Clause was Speech bodied the 20-21, May at hand. issue precise important protection as an “recognized sitting time a Member’s 2006 was the first leg- integrity of the independence by searched office has been Johnson, islature,” 383 States United clear, made The Court has the Executive. 169, 178, L.Ed.2d 681 15 U.S. jury however, grand context of a (1966), protection as a and was to serve Debate Speech that investigation, “[t]he by an un- possible “prosecution against co-equal to assure designed was Clause by a and conviction hos- friendly executive freedom of government wide branch of judiciary,” id. at 179. tile debate, and deliberation without speech, threats from the by intimidation or defining protections afforded In States, 408 v. United has limited Branch.” Gravel 33 L.Ed.2d integral an U.S. to conduct that is scope (1972). the Court Although Gravel functioning legisla- part of “the due Trout, supra note 2. Letter from Robert P. held the Clause embraces “[discovery testimoni- Id. at 420. As procedures can al privilege, id. at to date the Court prove just as intrusive” naming as Mem spoken has not on the privilege whether or their parties suit, bers staffs as ato id. n conferred (italics Clause includes a non- omitted), at 418 the court held that However, privilege. disclosure court this party “[a] is no more compel entitled to has. congressional testimony production of —or documents—than is to congress sue Beginning with the observation that the men,” Further, id. at 421. the court not prohibition in or Debate Clause ed, citing Eastland, 421 U.S. at “deceptively simple,” this court held in when the privilege applies it is absolute. Williamson, Brown & 62 F.3d at Williamson, Brown & 62 F.3d at 416. As the Clause includes a privi- non-disclosure such, “if the touchstone is interference lege, id. at 420. Noting that purpose “ activities,” with legislative then “the na or Debate Clause is ‘to ture of the use to which documents will be insure that the legislative function the put evidentiary imma —testimonial Constitution allocates —is Congress may terial.” vein, Id. at In the same performed independently,’ regard without court indicated that the degree of disrup to the distractions of litigation civil private tion probing caused into acts periods or the prosecution,” criminal id. immaterial, id. at see also MINPE (quoting Eastland v. U.S. Service- CO, S.A. v. Servs., Inc., Conticommodity Fund, men’s 502, 95 S.Ct. (D.C.Cir.1988). 1813, 44 (1975)), L.Ed.2d 324 the court Thus, rejected opinion the view our that the testimonial im- Brown & William- munity of son makes clear that a key purpose of the only applies when is to prevent Members or their intrusions in the aides personally questioned: are process and process is disrupted the disclosure of Documentary evidence can certainly be legislative material, regardless of the as use revealing as oral communications— to which the disclosed put. even if materials are when, indirectly here, See 62 F.3d at 419. The bar on compelled in question ... do not detail absolute, Eastland, disclosure is specific congressional actions. But indi- *7 U.S. at and there cations as to is no Congress what reason to looking is at believe that the bar does provide apply clues not what in the Congress to is criminal as doing, or well as the civil might be context. about to do—and this argue otherwise; true whether does not or not the the documents sought are search warrant sought only for the purpose of materials not inquiring (or protected by into frustrating) legislative Speech the or Debate conduct Clause. or to Although advance goals.... some other & Brown Williamson We involved do litigation not share the civil Third Circuit’s convic- and the being documents tion that democracy’s sought legislative nature, “limited were toleration the secrecy” for is inconsistent with an court’s in- discussion of the Speech or Debate terpretation of the Speech or Clause was profound Debate more and repeatedly Clause that would permit Congress referred to the functioning to of the Clause in insist on the confidentiality of investiga- See, criminal proceedings. e.g., Brown & tive files. Williamson, 62 at F.3d 416.4 4. The court acknowledged also that the Su- proceedings against of criminal persons other Gravel, preme Court's "sensitivities” Congress than Members suggest of at least at U.S. "to the existence manner in which the search is exe- of the of The search protections in view of the afforded in the disclosure cuted have resulted must of the agents compelled legislative disclosure of against materials legislative of Indeed, application accom- by materials or Debate Clause. Executive. In it. contemplated the warrant panying by our concur- The considerations voiced whether the to determine may order and the district court ring colleague warrant, to the search responsive Executive, were by good faith demonstrate papers all of the had to review FBI inter- they fail to adhere to this court’s but office, which some scope of the of the testimonial pretation acts. This legislative surely related or Debate privilege under to dis- clearly tends disclosure compelled Supreme much less to the Court’s be- exchanges legislative process: rupt leg- constitutes core interpretation of what Congress and a Member tween activities, Brewster, 408 at U.S. islative among Members staff or Member’s history and the of the Clause. While may legiti- matters legislative Congress on characterizes what occurred the Executive embarrassing mately involve frank arguably pro- review of as the “incidental compelled statements; possibility materials,” Appellee’s Br. legislative tected the ex- may therefore chill disclosure deny compelled not that it does legislative respect change of views occurred, the Executive nor by review chill runs counter activity. This it occurred in a location where protecting against dis- purpose of Clause’s found, inevitably to be nor materials were process. ruption delib- impairment that some ap- the district court The Executive and erations occurred. premise on the proceeded to have pear and the dis- Reliance the Executive narrows scope Daily, on Zurcher v. trict court Stanford In the warrant is issue. when a search 547, 566-67, view, district court’s There, (1978), misplaced. L.Ed.2d 525 by execution of implicated Clause was rejected argument Supreme Court a seizure warrant because the search a bar imposed that the First Amendment involve a testimonial documents did not absent third-party search warrants F.Supp.2d Rayburn, element. See press litigate prior opportunity emphasized 111-12. Both also material be- entitlement to the the state’s sought only non-privileged However, over or seized. fore it is turned distinguishing materials as basis Zurcher, did not Williamson, and looked to the & Brown search was particular address whether afforded the is- procedural protections *8 in unconstitutional it was invalid because available a search warrant suance of valid it nor did design implementation; its as eliminat- only investigations in criminal absolutely that shields privilege a involve to Congress’s capacity ing any threat to non-voluntary disclosure. records concurring col- effectively. Our function understanding the Executive’s Contrary to fail- approach, league takes much the same suggest that incorrect to appeal, on is the lawfulness distinguish between ing position Congressman pursu- searching prior notice of entitled to he was and the lawfulness ant to a search warrant below, possi- this As we note might F.3d at 419-20. privilege be less testimonial present case. bility applicable with a to the stringently applied when inconsistent is not Williamson, & sovereign interest.” Brown execution, procedure search warrant before its with- terials. This significantly dif- regard out to the Executive’s in interests ferent even from those the Executive has Congressman law enforcement. The privileges on occasion afforded to other not in makes clear his brief that he is not Constitution; protected in the example, for suggesting required by advance notice is in Office, United States v. Search Lawof agents the Constitution before Executive (5th Cir.2003), 341 F.3d privi- arrive at his office. See Br. at Appellant’s lege holder was an opportunity allowed 36. Rather he contends and identify protected under the at- executive interests can be accommodated torney-client privilege point notice, urged, example without such completed. Although search was the Su- Deputy Counsel House of preme Bursey, Weatherford Representatives: contemplat- “We’re 545, 558, 429 U.S. 51 L.Ed.2d ing go advance notice to the [M]ember (1977), distinguished between the re- into his office to search his documents ceipt agent information an anyone up,” before shows but rather that of the Executive prosecution Capitol would seal the office “[t]he [P]olice team in rights the context of a civil claim that nothing go so would out of that office violation, based on a Sixth Amendment place and then the search would take with nature of the presented by considerations there.” Tr. of Hr’g, [MJember June violation of the or Debate Clause Appellant’s Br. at 36. If is different. the testimonial privilege Neither does the maintain under the Clause is absolute and there is protects Debate Clause no distinction between oral and written unprivileged evidence unprivileged crim- legislative sphere, materials within the inal conduct. Nor has the Congressman privilege then the non-disclosure for writ- argued that his assertions of privilege ten materials described in Brown & Wil- judicially reviewed, could not liamson, absolute, 62 F.3d at is also the warrant procedures this case were and thus admits of no balancing, Unit- cf. they flawed because him op- afforded Nixon, ed States v. portunity privilege to assert the before the (1974); Moody L.Ed.2d 1039 Appel-, scoured his records. See IRS, (D.C.Cir.1981). lant’s Br. at 37. compelled The disclosure of ma- special procedures The outlined terials to FBI executing the search affidavit would not have avoid warrant was not unintentional but deliber- ed the violation ate—a means to uncover responsive non- they Clause because the Congress denied privileged materials. man opportunity identify and assert There would appear why to be no reason respect privilege under materials before compelled their disclosure Speech or Debate Clause cannot be assert- Indeed, agents. to Executive the Con ed at the outset of a manner gressman, attorney, and counsel for the protects that also the interests of the Ex- House of Representatives were denied en ecutive law enforcement. To the extent try into Room 2113 once the FBI arrived. expresses the Executive concern about the special procedures described in the *9 placed upon burdens the district court and warrant affidavit by called for review FBI delay during judicial attendant review of agents and the several members materials, seized the Remand Department Justice filter team Order illus- before the Congressman a oppor approach by would be afforded trates streamlined narrow- an tunity identify potentially to privileged ing ma- the number of materials the district privileged The disclosure of materials to the required to review. may be court Executive; advises, of Execu- utterly devoid the Executive see historical record sug- 14, 62-63, offices congressional Br. FBI Appellee’s tive searches no a will imposition of such burden gests the agent agent or other has seen be, most, Regardless of infrequent. that, any upon adju- document electronic by initially the accommodation is whether Congressman’s dication of the claim of to searched before the sealing the office by privilege, may be determined the dis- opportunity is afforded an Member ma- privileged legislative trict court to be identify potentially privileged terial. prior by review Executive materials means, seriatim some other III. by agents of the Executive initial reviews what question ap The remains sitting congressional of a Member’s remedy is under Rule a propriate 41(g) for privilege with the under are inconsistent violation of the or Debate Clause. is to the Clause. How that accommodation Advisory The 1989 Committee Notes to by the be achieved is best determined 41(e)6 Rule state: legislative and executive branches govern No standard is set forth Although the court has first instance.5 property of whether determination not a Member acknowledged, where person ag- be returned to a should subject proceedings, criminal who is grieved either an unlawful seizure or stringently privilege might be less property.... If deprivation sovereign a when inconsistent with applied a need for the the United States has Williamson, interest, Brown & 62 F.3d property investigation prosecu- in an 419-20; supra note this observation tion, property gener- its retention of the relevant, if at bearing here and is has But, if the ally is reasonable. United all, remedy question to the viola- legitimate interests can be satis- States’ tion, not the determination of whether returned, property if the fied even has occurred. violation the property continued retention of Accordingly, we hold that a search would become unreasonable. agents of the Executive to review allows added). (emphasis Our task is to deter- materials without the Mem- scope mine how to reconcile ber’s consent violates the Clause. to a Member of protection that is afforded Executive’s search of the under Congress paper files therefore violated the the Executive’s Article II re- Clause with computer hard drives copying but its for law enforcement. sponsibilities and other electronic media is constitu- Clearly remedy this case must show tionally because the Remand permissible fact particular respect op- an Order affords the “reinforces the prior or Debate Clause portunity to assert fices); Stanley M. et al. Amicus Br. of Brand 5. See Amicus Br. of Hon. Abner J. Mikva at Palmer, (former Repre- to the U.S. House of of Scott Elliot S. counsel Amicus Br. scholars) Berke, Stuntz, (for- at 28- Philip sentatives and the Senate and and Reid Kiko (same). staffers) congressional at 26. mer senior Compare Foley, Br. of Thomas S. Amicus Amendments, (former Rule Gingrich 6. As a result of the Newt and Robert H. Michel 41(e) stylistic Representa- appears minor Speakers now of the U.S. House of tives) 41(g). v. Albin (suggesting specific changes as Rule United States at 27-30 alternative Cir.2004). son, (3d 279 n. 1 procedures for search of of- *10 Leon, 468 U.S. separation powers protects legisla- of States (1984), independence.” tive Fields 82 L.Ed.2d 677 is relevant to Office of Johnson, Eddie Bernice Congressman extent the invokes deter the (en banc) cases). (D.C.Cir.2006) (collecting remedy as a rationale for the he rence in Congressman argued Jefferson the dis- addressing In 41(g). seeks under Rule irreparable trict court that he has suffered application exclusionary the rule in the of adequate remedy harm with no available Amendment, context of the Fourth of constitu- at law because the violation his Supreme pointed out in Leon that by an rights tional cannot be vindicated “[particularly when law enforcement offi damages other action law or objective in good cers have acted faith [on however, appeal, traditional relief.7 On by magistrate] a warrant issued a neutral Congressman makes no claim that the minor,” transgressions have been or their functioning impaired of his office has been exclusion, in possible benefit original loss of access to the versions of deterrence, limited, terms of future documents; the Remand Order seized 907-08, 104 U.S. at S.Ct. 3405. Additional given copies directed that he be of all ly, respect to concern about future July seized documents. Remand Order of Executive, only actions this is the Perhaps point, more to the how- history time in this Nation’s that the Exec ever, complete he contends that return of sitting utive has searched the office of a only remedy all seized materials is the holding of Our re Congress. Member separation powers princi- vindicates the garding compelled privi disclosure ples underlying Speech or Debate leged agents of the Execu appropriate Clause and serves as an deter- during tive the search makes clear that the rent to future violations. special procedures described the war Although protect rant affidavit are insufficient to paper Speech files violated the under or Debate argument does not Clause. This too should ameliorate con seeks, support granting the relief that he cerns about deterrence. documents, namely the return of all seized time, remedy give At the same must including privileged or not. copies, whether separation powers effect not order, Taking his assertions reverse underlying or Debate Clause unnecessary relief such deter future sovereign’s but also to the interest under unconstitutional acts the Executive. II, Article Section 3 law enforcement. There is no indication that the Executive following principles govern our conclu- good interpre- did not act based on a faith pro- sion. The or Debate Clause law, tation of the as reflected the dis- against compelled tects disclosure of prior approval trict court’s and later de- documents to of the Ex- special fense of the forth in procedures set ecutive, but non-privi- not the disclosure of the warrant affidavit. While the Fourth us, leged materials. Its “shield does not ex- Amendment issue is not before beyond necessary preserve Court’s instruction United tend what is States, Office, In re See Search Law 341 F.3d at Ramsden v. United F.3d (9th Cir.1993) Fifth, (holding ("agree[ing] 414 & n. 49 court must with the district least, very showing Eighth, find "at the a substantial and Tenth Circuits that a district irreparable suppress harm” in order court must determine whether movant will 41(e), citing irreparable injury considering seized evidence under Rule G.M. suffer when States, Leasing Corp. preindict- v. United whether to the merits of a reach 359-60, (1977)); 41(e) motion”). 50 L.Ed.2d 530 ment Rule

665 process,” any disruption congression claim of of the integrity legislative of the Brewster, 517, and it original at “does al office reason of lack of ver 408 U.S. sions, inquiry illegal simply unnecessary into conduct it is prohibit to order the return nexus to non-privileged has some materials as a further because functions,” particular This remedy id. at 528. for the violation of the Clause. the function needlessly disrupted Congressman suggested The has no other ing Congressman’s of the allow why non-privileged reason return of the ing agents legisla of the Executive to view required pursuant documents is to Rule Congressman’s tive materials without the and, event, 41(g), it is that doubtful consent, though even a search of con jurisdiction the court has to entertain such prohibited per office is not se. gressional arguments following the return of in Still, makes no claim Congressman dictment. Unlike the re brief, any showing, that the much less quest for the return of materials disrupted has been functioning of his office protected or Debate having possession as a result of not the further claim for the return all non- original non-privileged versions of the privileged independent materials is not important, to con seized materials. Most him, prosecution against espe the criminal pro strue the cially legality if the of the search will be a privilege against a sei viding an absolute critical criminal issue trial. See In materials essential non-privileged zure of re, N., 3021 6th Ave. 237 F.3d at 1041 enforcement of criminal to the Executive’s States, (citing DiBella United 369 U.S. II, Article pursuant statutes Section 3 121, 131-32, 654, 82 7 L.Ed.2d 614 S.Ct. generalized on no more than a claim that (1962)); In re Search the Premises separation powers demands less Yosemite, Known as South 897 F.2d 6455 would, has ob Supreme as the (10th 1549, Cir.1990); 1554-56 United served, qualified privilege, albeit as to a Exchange, States v. Mid-States balance of ‘a “upset the constitutional (8th Cir.1987) curiam). 1227, (per ” Nixon, government.’ workable 418 U.S. agree with the holding We Ninth Circuit’s (quoting Youngstown 94 S.Ct. 3090 that Rule the 1989 amendment to elimi Sawyer, Sheet & Tube Co. v. 343 U.S. nating coupling of motion for the (1952) 96 L.Ed. 1153 property return of under Rule and a (Jackson, J., concurring)). trial, motion to exclude evidence at Fed. that the Clause is to Court has instructed 41(g), does not affect DiBella’s R.CRIM.P. way applied “in such a as to insure the force, which balanced the indi controlling al independence legislature without and their government vidual and interests tering the historic balance of the three co delays disruptions, relationship to trial equal branches of Government.” Brew 124, 126, 129, 654; see, 369 U.S. at ster, 2531; 408 U.S. S.Ct. N., e.g., In re 3021 6th Ave. F.3d at Fields, 459 F.3d at 9. generally 1041. See 15B Charles Alan R. H. Wright, Applying principles, these we conclude Arthur Miller & Edward Cooper, Federal entitled, is as the Practice and Prooedure (2d ed.1992). Although § the Con 3918.4 may district court in the first instance gressman’s request solely further for the Order, Remand pursuant determine 41(g) his Rule motion property, return of (including all to the return of materials prosecution criminal is “tied to a esse copies) mate- are movant,” DiBella, against the under the or Debate Clause. rials it is of no moment applies protection Where the Clause its S.Ct. stated, district, was filed in another For the reasons absent the indictment absolute. *12 special personnel here, has com Executive Branch prosecution id. The fact that the — Investiga- Bureau of adequate opportu agents “will afford ... of the Federal menced constitutionality warrant directed to challenge the tion—execute search nity to office,” ... and hence office of a Member of congressional the search of his the (Member) doing without vio- danger Congress is now no that the the [Execu “there Debate Congressman’s] retain lence to the or Clause might [the tive] (Clause) I, any in Article indefinitely opportu without set forth Section property right the Constitu- nity appeal ... to assert on to Clause United States upon “no The limited States Su- possession”; hence there is basis tion? United ap- the grant piecemeal preme precedent regarding [his which to review materi non-privileged claim of the Clause in the criminal plicability further] [for States v. Search Warrant thing als].” United context makes one clear—the Clause Wabash, N. Suite ex- purport general “does not to confer a for Cir.1984). (7th 1174, 1176 emption upon Congress Members of from in liability process or criminal cases. Accordingly, Congress- we hold that the Quite contrary the is true.” Gravel legisla- man to the return of all is entitled States, 606, 626, 92 S.Ct. United that (originals copies) tive materials (1972) (emphasis L.Ed.2d 583 add- protected by are the ed). appears Supreme It that neither the Rayburn seized from House Office any inferior court has addressed Court nor 20-21, May 2113 on Building Room question single the as I view it and the Further, contemplated by the warrant as holding our court on which the ma- ¶¶ affidavit, 137-38, Aff. see Thibault jority exclusively to answer almost relies FBI who executed the search war- question negative decides rant continue to be barred from dis- shall subpoe- a civil applicability the Clause’s closing any privileged the contents of by private parties sought na obtained who non-responsive sensitive and “politically congres- ¶ possession certain files items,” they id. not be shall Brown & Wil- sional subcommittee. See or oth- pending prosecution involved Williams, Corp. liamson Tobacco charges arising investigation er from the (D.C.Cir.1995) (Clause F.3d 408 barred en- in the warrant other described affidavit subpoenas forcement of duces tecum is- regards responsiveness, than as id. sued to two members of House Subcom- HENDERSON, KAREN LECRAFT Environment); Maj. mittee on Health and Judge, concurring judgment: Circuit Op. (relying at 659-61 on Brown & Wil- away, because Court has “[t]he When all of the brush is cleared liamson presents simple question: spoken”).2 this case can not But Brown & Williamson’s Clause,” provides any Speech animating Appel- 1. The Clause that "for core concerns protections Debate in either House” Senators and lee's Br. at and therefore "the "[t]he questioned Representatives” precluding "shall not be of the Clause ... cannot extend to I, 6, warrants,” § respect other Place.” U.S. Const. Art. cl. 1 id. at 45. With added). moreover, (emphases precedent, government our as- “Brown & itself distin- serts that Williamson guished subpoenas and criminal between civil Contrary majority's to the assertion proceedings, holding and limited its argue” Executive does not "[t]he Finally, government former.” Id. at 47. compelled Clause’s “bar on disclosure” "does repeatedly emphasizes consequences for apply well in the criminal as civil context,” Maj. government law enforcement if a non-disclosure rule is Op. at recognized expressly argues in the criminal context. See id. at execution of a "[t]he 37-38. search warrant is far removed from the dispute There is no regarding the Clause issuance of comments brief im- Rep. context—which comments search warrant the criminal acknowledge .the Clause’s less office does not violate the portantly scope Maj. in that context3—remain categorical Op. Clause. See 659. The Maj. “profound.” Op. matter how “Speech protected by dicta no or Debate” the Con question I can be only “legitimate at 661. believe stitution includes “yes” see, without resort directly answered tivity,” e.g., Tenney ac v. Bran *13 support other indirect or theo- dhove, 367, 376, dicta or 783, 71 341 U.S. S.Ct. 95 Accordingly, while I concur in the ry. (1951), is, “[t]aking L.Ed. 1019 and a bribe affirms the district court’s judgment which obviously, part process Representative denial of William J. Jeffer- function; act,” a legislative is not motion, I 41(g) Rule (Rep.Jefferson) Brewster, 526, son’s 408 U.S. at 92 S.Ct. majority’s reasoning agree do not with the Here, only “fruits, in- sought the warrant myself from much of its dicta. and distance strumentalities and evidence of violations bribery of’ various federal and fraud stat Court has made clear that Jefferson,4 involving Rep. utes see Warrant privilege “Speech the two elements of — (JA) Aff., 7; reprinted Appendix in Joint “questioning]” “be or Debate” —-must (SA) 18-25, Appendix plainly Sealed which broadly purposes.” to effectuate its read protected legisla are outside the of bounds Johnson, 169, 383 States U.S. United activities, Brewster, tive 408 U.S. (1966). 749, 180, L.Ed.2d 86 S.Ct. 15 681 526, Having “proba 92 S.Ct. 2531. found noted, our court has the “touchstone” of As Rep. ble cause to believe that” “is interference with the Clause congressional property office “contains Williamson, activities,” 62 see Brown & constituting evidence of the commission of is therefore “de F.3d official, ... bribery public ... of a wire Congressmen ‘not signed protect fraud[,] bribery foreign of a official ... litigation’s re consequences from the of conspiracy to commit” these crimes [and] of defend sults but also from the burden ” having issued a search warrant aimed for their ac ing themselves’ evidence, solely at such see Warrant Aff. at Meanor, 500, tions, 442 Helstoski v. U.S. (internal omitted), citations JA 87-88 (1979) 508, 2445, 99 61 L.Ed.2d 30 S.Ct. district court ensured that the warrant Eastland, Dombrowski v. 387 (quoting only unprivileged records. encompassed 82, 85, 1425, 18 L.Ed.2d 577 87 S.Ct. is, course, judiciary, And it of not the (1967)); Johnson, 179, 383 U.S. at see also legislature, that delineates the executive or (Clause “protect[s] legis [the 86 S.Ct. 749 scope privilege. See United States prosecution by an against possible lature] Nixon, 683, 703-04, 94 418 U.S. S.Ct. conviction unfriendly executive and (1974) (citing 41 1039 L.Ed.2d Still, judiciary”). “speech hostile cases to illus Speech or Debate Clause preserve designed debate was judicial to define of ex power scope trate supremacy.” legislative independence, Brewster, In re privilege); ecutive Search States v. 408 U.S. United cf. (1972) Rayburn Bldg. House Room No. 33 L.Ed.2d 507 Ofice added). 100, 116 (Rayburn), F.Supp.2d (emphasis services), seq. (bribery §§ et pp. 15 U.S.C. 78dd-l 3. See 659-60. infra official) (con- foreign § and 18 U.S.C. spiracy bribery, wire to commit fraud (bribery § They include 18 U.S.C. official). official), foreign bribery See Warrant Aff. public §§ 18 U.S.C. 1346 and (wire deprivation at JA 7. fraud and of honest (“A (D.D.C.2006) “ques- impermissible not a cause it constituted judge federal him. Br. at tioning]” Appellant’s See stamp process, rubber in the warrant mere 13-22; I, § I Art. cl. 1. and neutral offi- U.S. Const. independent rather an but disagree.6 uphold and defend Con- cial sworn to stitution.”)- warrant The execution of a valid search power,” an of executive United “exercise

Notwithstanding the search Grubbs, records, Rep. Jef- States v. sought only unprivileged (2006) (inter- office, 164 L.Ed.2d 195 as the war- ferson’s omitted), and, noted, manifests,5 quotation rec- nal rant itself also contained ords, electronic, made clear that legislative Supreme Court has paper and purport gen- “does not to confer a protection ex- Clause acts to which Clause’s exemption upon eral Members of Con- Execution of the warrant necessar- tends. *14 Gravel, gress” process, from criminal ily required separate the FBI to Nevertheless, privi- from U.S. at 92 S.Ct. 2614.7 unprivileged responsive records my holding that the in legislative colleagues of acts. It is this conclude leged records Williamson, at Rep. Brown & see 62 F.3d 418- aspect of the warrant’s execution legis- that “the be- establishes disclosure Jefferson claims violated Clause procedures precludes execution "special in Clause Executive Branch 5. The warrant includes pp. of a search warrant. See 657-61. any po- to minimize the likelihood that order infra sensitive, non-responsive tentially politically 7.Rep. places emphasis Jefferson considerable items in the Office will be seized” "identi- execut- on the fact that "the executive branch fy[ing] may fall within the information legislative ed a search warrant on the office of purview of the or Debate Clause ... sitting Congress a Member of for the first time pertinent privilege.” Warrant other history Appel- of the United States.” (direct- at JA id. at JA 80-87 Aff. see also lant's Br. at That does not mean that the ing respon- search team to seize records power Branch is without to execute provide potentially warrant; sive to and to just likely a indicates that such privileged Rep. and records to Jefferson to never before has the Executive Branch found Indeed, non); necessary. unique its use this mo- court to determine vel district history largely 21, 2006), ment in our nation's (May reprinted Warrant Search months, making. Representative’s own For (incorporating at Warrant Affidavit JA 3 government repeatedly tried and failed— reference). part Rep. due in to Jefferson’s invocation right his Fifth Amendment obtain records —to majority suggesting 6. The is incorrect in congressional office via a of sub- in his series distinguish I to between the lawfulness "fail[ ] Only poena duces tecum. See SA at 54-74. searching congressional pursuant a through failing after to obtain records to a search warrant and lawfulness investigative Rep. means within Jefferson’s manner in which the search is executed.” ability government did the turn to a to control Maj. Op. at 661. The distinction is what these warrant, Rep. search which minimizes Jeffer- pages The warrant was fourteen discuss. right. son’s role—and his Fifth Amendment lawfully issued because it does not seek evi- Moreover, Rep. proposed method Jefferson’s generally dence of act "[a] sealing of warrant execution—first his office Congress in relation to the business done in allowing separate privileged to from him it,” Brewster, before United States non-privileged records-effectively eliminates 2531, 33 L.Ed.2d 507 between a warrant and distinction search crimes, (1972), rather evidence of see su- but subpoena. proposal resurrect a His would majority, pra pp. Unlike the howev- 655-56. right presum- his Fifth Amendment because er, ably respond I believe that neither the as he did to the sub- he would poena pp. duces tecum. See 657-58. nor Brown & Williamson holds that infra evidence, producing of a from during the execution lative material” warrant, at amounts Maj. Op. FBI production”). but not from its because the “question[ing]” prohibited agents’ Rep. execution of the warrant on embodies a broad “non-disclosure congressional office did not re- 660, that Maj. Op. safeguards privilege,” anything latter to do accord- quire the confidentiality the absolute ingly “question[ing]” falls far short of the process. With even from criminal records the court in Brown & found Williamson vastly they I believe over-read respect, to a required response was of Member holding pro That Brown & Williamson. subpoena. civil certain records production hibited the Moreover, majority recognizes, as the possession subcommittee’s Maj. in Brown & Op. see William subpoena. to a civil See response heavily pur on the son we relied Clause’s Williamson, 418-19 Brown & process pose shielding Conticommodity — MINPECO, (citing S.A. disruption reading the Clause’s Inc., ervs., —in F.2d 857-59 S broadly to prohibition “question[ing]” (D.C.Cir.1988)). dif It found no functional “confidentiality,” Brown & protect the compelling a Member ference between Williamson, 417-21, 62 F.3d at of records him orally compelling “questioned” subpoena. Noting from the reach of a civil response produce id. at 420-21. subpoena. “privilege See is not designed protect reputations of con *15 noted, Yet, court “the as the district functioning of but rather gressmen between a warrant and sub- difference 419, at the court concluded Congress,” id. here.” importance is of critical poena production that document threatened to at 111. Answer- Rayburn, F.Supp.2d 432 legis distract the two Members from their subpoena requires a civil the individual ing act; duties, at MIN affirmatively (quoting he either lative see id. 418 subpoenaed 859). sought testimony/documents PECO, produces at declared that We validity. In challenges subpoena’s or certainly be “[d]ocumentary evidence can contrast, requires a search warrant communications,” revealing pro as as oral property is to be the individual whose doing, viding Congress “clues as to what Instead, nothing do affirmative. searched 420, do,” at and about to id. might or require- must first meet defeating the Clause’s thereby potentially Amendment via the ments of the Fourth Congress to “insulate Members of purpose “a neutral and detached prior approval of time, that ‘divert their from distractions States, 333 magistrate,” Johnson v. United energy, and attention from their 10, 14, 367, L.Ed. 436 ” 92 U.S. MINPECO, tasks,’ (quoting id. at 421 (1948), and, upon finding that official’s (quoting F.2d at 859 Eastland U.S. 844 cause, the warrant “authorizes probable 503, Fund, 491, 421 95 U.S. Servicemen’s to seize evidence Government officers (1975))). 1813, 44 324 Given L.Ed.2d S.Ct. requiring through enforcement without purpose, we concluded this Miller, courts,” 425 U.S. United States to insist on the confi “permit[s] Congress 1619, 71 446 n. 96 48 L.Ed.2d S.Ct. there dentiality investigative files” and (1976). property owner is not re- subpoena. enforcement fore barred orally by phys- quired respond either Id. at 420. ically property, including producing non-disclosure & Brown Williamson’s States, records. Johnson v. United 228 Cf. rule, however, criminal does not extend to 57 L.Ed. 919 U.S. (1913) (under of FBI Although presence party process. Fifth “[a] Amendment

670 aside, it that a Disruption in a is well settled executing a search warrant agents necessarily disrupts subject prosecution criminal office Member is Member’s routine, Brewster, procedure pro- the alternative 408 U.S. at process. and See the of- by Rep. sealing (Clause’s posed “purpose [is 92 S.Ct. 2531 Jefferson — him to first label his permitting fice and Congress super- to make Members not] electronic) privi- (paper records citizens, responsibil- immune from criminal no doubt leged unprivileged Gravel, ity”); S.Ct. —-would Moreover, time. take much more of his activity protected core 2614.9 The responsible FBI for the search agents in either chamber of the speech Clause — Rep. essence, act. In Congress public —is disrup- to minimize great lengths went to therefore, promotes is the what the Clause alia, by, executing inter the warrant tion ability open in debate— Member’s to be meeting, imag- Congress when the was free from interference or restriction— than ing computer hard drives rather any secrecy right. than That can- rather specific searching computers, using animating purpose dor is the of the Clause paper for and electronic search terms both plain from the historical roots and, Fil- important, creating most records drafting In De- privilege. one paper ter Teams—one for records and En- upon bate the Framers drew ensuring for electronic records —and sub- glish history “long struggle and the judicial to mini- sequent camera review parliamentary supremacy” against “Tudor exposure mize records. See during monarehs which succes- Stuart Aff. at The Filter Warrant JA 79-87. criminal and sive monarchs utilized the Teams consisted of FBI suppress civil and intimidate critical law prior investiga- “role or connection to the legislators” publicly opposing Rep. tion” of Jefferson and whose “roles Johnson, Crown. U.S. S.Ct. investigation confined to ... [were] Tenney, also *16 ... reviewing] records seized from (“The privilege legislators 783 to S.Ct. they to validate that are respon- the Office process be free from arrest or civil for in warrant. sive to the list” contained they say proceed- what do or filtering (describing procedures Id. at 81 ings taproots Parliamentary has (electronic records); paper for id. at 84-85 struggles of the Sixteenth and Seventeenth records). By Teams creating Filter Centuries.”). “[b]y judicial requiring approval be- that, once it at- And while is true any arguably privileged fore taches, an bar to team, the Clause “is absolute prosecution could be shared with the Eastland, legislators, interference” with procedures the search as a whole eliminat- (citing at 95 Doe that U.S. S.Ct. 1813 possibility ed realistic evidence McMillan, Rep. legislative acts would be S.Ct. (1973)), recognizing L.Ed.2d 912 against Appellee’s used him.” Br. at 26. I, 6,§ physical U.S. Const. Art. cl. 1: "The "[T]he [was] search of the Office 9. Cf. by Special Agents [with] conducted ... no Representatives ... in all Senators shall Rep. investigation” substantive role in Cases, Treason, except Felony and Breach Jefferson. Warrant Aff. at JA 80. These Peace, during from Arrest " " agents' the records in 'non-case reviewed their at the of their re- Attendance Session Rep. only determine if Jefferson’s office "to Houses, going spective and in to and re- they responsive to the list of items” in [were] turning (emphasis ....” add- from the same warrant, thereafter the seized "deliver[in] ed). ... records to” the Filter Teams. Id. once it at- to violate an otherwise valid criminal law absolute question whether begs preparing implementing legisla taches for or begin Signifi- to with.10 added)), Clause attaches (emphasis tive acts” so that we ex- cantly, in Brown & Williamson Brown & Williamson’s reference recognized that the Clause’s “testi- pressly “Gravel’s sensitivities to the existence of privilege might stringently be less monial criminal proceedings against persons other a sovereign when inconsistent with applied Congress” than Members of no does more interest,” such as the conduct of criminal facts, than describe the Gmvel Brown & (distin- 62 F.3d at 419-20 proceedings. Williamson, Indeed, 62 F.3d at 419. guishing criminal context from Gravel’s distinguish “refus[ed] Gravel between subpoena). My colleagues qualify civil in applying Senator and aide & reference to Brown Williamson’s Grav- Clause,” Gravel, 408 U.S. at 622 el, noting “it not a Member who [was] added), (emphasis finding instead the exis subject proceedings” criminal [was] tence of criminal proceedings dispositive, Yet, Maj. Op. at 663. process Gravel. noted, id. 626. As Gravel his aide’s majority to the extent the reads Brown & privilege derives from the Member’s. Id. process to limit Gravel Williamson (describing at 616-17 aide Member’s as during served on aide ]”). ego[ “alter Because stresses Gravel party, criminal of a third investigation significance proceedings, of criminal reading mischaracterizes both Brown & target, rather than their and because his holding Williamson and Gravel. Gravel’s can aide invoke the Clause if the that the Clause does not “immunize Sena- so, majority wrong Member can do testifying aide tor or trials or maintaining language Gravel’s grand jury proceedings involving third- construed Brown & Williamson is limit party replete crimes” is observations “third-party” ed to crime.11 “provides protection Moreover, out, government points as the ... performed criminal conduct at the di- pro- to conclude that the shield Clause’s rection of the or done with- [Member] against any expo- tects Executive Branch Gravel, knowledge” by out his an aide. sure to records of acts would S.Ct. Gravel jeopardize law enforcement tools “that unmistakably clear that a Mem- makes problematic.” have never been considered just subject crimi- ber—not a staffer —is see, Gravel, Appellee’s Rayburn, Br. at see also liability e.g., nal process, *17 (Clause (“Carried 626, logi- at 110 to F.Supp.2d at 2614 432 its 408 U.S. conclusion, privilege argument “does not either Senator aide cal this would re- or absolute,” concluding pelled In that "there is no reason to disclosure is id. at again begs question & rule] believe that the does not whether Brown [nondisclosure applies to apply in the criminal as well as the civil Williamson's non-disclosure rule context,” at all. Maj. Op. my colleagues criminal matters at first acknowledge that "Brown & Williamson in- dicta, litigation,” id. at 660. volved civil Nonethe- 11. Unlike the Brown & Williamson they less believe Brown & Williamson s dis- applicabili Gravel's discussion of Clause's profound,” ty analysis. cussion of the Clause was "more to Members should direct our See applying equally Dorcely, mere- criminal context 454 F.3d 375 United States (D.C.Cir.2006) (" ly “repeatedly 'carefully because it referred to func- lan considered Court, tioning proceed- guage Supreme techni of the Clause in criminal of the even if Likewise, dictum, my colleagues’ cally generally ings.” Id. must be treated as notion ” EPA, applies (quoting Sieira Club v. that Brown & Williamson to criminal authoritative' (D.C.Cir.2003))). because the Clause’s "bar on corn- 724 matters 672 judicial process,” of the “legitimate advance needs given ... to be

quire Member in- constitutional property, specifically, “primary his any notice of search of congres- justice outside Branch to do cluding property duty of the Judicial car, office, Nixon, such as his home or sional prosecutions.” criminal 418 U.S. further that he be allowed to remove of these Recognizing strength at 707. by the material he deemed to be covered interests, constitutional search.”). prior to a legislative privilege privi- scope limited the of executive alone violat- exposure If Executive Branch unquestionably a confiden- lege —which ... “agents could privilege, ed the judi- tiality rule-by permitting in camera a con- voluntary interview with conduct cial of executive records to meet review report to gressional staffer who wished develop all relevant facts” need to “[t]he staffer, by a Member or criminal conduct prosecution. a criminal Id. at 709. possibility that the staf- because of majority, barring Executive Branch ex- in ... de- legislative discuss acts fer would and, by of a search ex- ecution warrant — criminal con- scribing unprivileged, tension, investigatory common other Br. at 38. Such a rule Appellee’s duct.” exposure privi- on mere to tools—based apply to surveil- “presumably would also records, Branch leged checks Judicial might or staffer who lance of a Member Brewster, well. 408 U.S. Cf. with another legislative discuss matters designed was (“speech debate Furthermore, Id. Member or staffer.” legislative independence, not preserve to power the Executive of the “[depriving added).12 supremacy”) (emphasis investigate prosecute and the Judicia- sum, In I the Executive Branch’s believe bribery ry power punish of Mem- of a search warrant on a con- execution unlikely to enhance Congress bers of gressional office-with its unavoidable but Brewster, independence.” exposure minimal to records of added); id. at (emphasis U.S. at 525 “questioning]” acts-does not constitute (reasoning that “financial abuses 524-25 meaning or De- within the bribes, more than by way perhaps even reading of the bate Clause. On this under- power, gravely would subject to Rep. Jefferson remains legislative integrity mine and defeat the process applies the same criminal representa- right public honest Gravel, tion”). his constituents. See 408 U.S. hand, limiting other On the country allow 626. As laws this may “[t]he be used to law enforcement tools employment sanctuary as a place undermine the investigate Members does dicta, reject in United States v. John Again Brown & Williamson Clause that occurred son, S.Ct. 15 L.Ed.2d holding in In re Grand ed the Third Circuit’s (3d (1966) criminal case—as aris Jury Investigation, F.2d 589 Cir. — another 1978), ing merely prohibits evi- from "the use of evidence” of a that the Clause Brewster, support dentiary legislative acts but act to the indictment. use of records of added). disclosure, (emphasis concluding instead that 92 S.Ct. 2531 not their Brewster, functioning According protecting "a Member of Con interest *18 gress may prosecuted a legislature may permit Congress "to be under criminal investigative provided case confidentiality statute that the Government’s insist on the files," rely legislative Corp. v. does not on acts or motiva Brown & Williamson Tobacco Williams, (D.C.Cir.1995). tion for acts.” Id. at 92 S.Ct. 62 F.3d Thus, distinguishes criminal the Su again 2531. context And the criminal context preme indicated that it is the Exec dicta from this case. Court has Brown & Williamson’s Brewster, evidentiary involving the utive Branch’s use of example, in a case For evidence, acts, Member, exposure to that prosecution the Su rather than its criminal the Clause. preme the violation of the violates Court described States, v. United crime,” Williamson 425, 439, 163, 52 L.Ed. 278

U.S. Willkes,

(1908) v. (quoting King Wils. (1763)), I conclude that would not bar the

Speech or Debate Clause does

Executive Branch’s execution of a search and, on a ac- deny 41(g) Rule

cordingly, Rep. Jefferson’s

motion.13 America, Appellee STATES

UNITED

v. TAYLOR, Appellant.

Thomas

No. 05-3125. of Appeals,

United States Court

District of Columbia Circuit. March

Argued 2007. Aug.

Decided Rep. may At Jefferson assert elements offensive to the trial immunity however, Clause.”). or Debate Clause to bar the use of stage, Rep. At this Jeffer- privileged. v. records he claims are Fields copies Cf. entitled the records son is Johnson, Eddie Bernice Office of government judicial seized review (D.C.Cir.2006) (affirming 13-16 denial of privileged, record he claims is as our Member's motion to dismiss on July provides. 2006 order See United ground noting Debate but that even Rayburn Bldg., Room States House Office preclude "[w]hen the Clause does not suit 28, 2006). (D.C.Cir. July No. 06-3105 altogether,” "may preclude some relevant majority suggests To the extent the that-if evidence”) banc), denied, (en cert. Office of disruption Member can show of his - -, Hanson, Dayton Sen. Mark government may required activities-the 167 L.Ed.2d 898 non-privileged remedy material return Johnson, (2007); ("With all 665-66, Maj. Op. at violation of the [legislative eliminated material] references to thereby potentially depriving the Executive indictment], we think the Govern [from bearing criminality, Branch of records on it is precluded ment should not be from a new *19 count, categorically reject. wholly purged suggestion I trial on this thus