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RECKLESS JUSTICE: DID THE SATURDAY NIGHT

RAID OF CONGRESS TRAMPLE THE CONSTITUTION?

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 30, 2006

Serial No. 109–122

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

(III)

C O N T E N T S 

MAY 30, 2006

OPENING STATEMENT 

Page 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Committee on the Judiciary ..... 1

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 2

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Member, Committee on the Judiciary ........................................ 4

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Member, Committee on the Judiciary .................................... 4

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Committee on the Judiciary ................................. 5

The Honorable Chris Van Hollen, a Representative in Congress from the 

State of Maryland, and Member, Committee on the Judiciary ........................ 6

WITNESSES 

Mr. Charles Tiefer, Professor, University of Baltimore Law School 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 9

The Honorable Robert S. Walker, Chairman, Wexler & Walker, and former 

Member of Congress from the State of Pennsylvania 

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 24

Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public Interest 

Law, The George Washington University Law School 

Oral Testimony ..................................................................................................... 25

Prepared Statement ............................................................................................. 29

Mr. Bruce Fein, Principal, The Lichfield Group, Inc. 

Oral Testimony ..................................................................................................... 46

Prepared Statement ............................................................................................. 48

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing questions from the Honorable Robert S. Walker, 

Chairman, Wexler & Walker, and former Member of Congress from the 

State of Pennsylvania .......................................................................................... 63

Response to Post-Hearing questions from Jonathan Turley, Professor, George 

Washington University Law School .................................................................... 68

Response to Post-Hearing questions from Bruce Fein, Principal, Lichfield 

Group .................................................................................................................... 74

‘‘Memorandum in Support of Motion for Return of Property’’ ............................. 82

‘‘Motion for Return of Property and Emergency Motion for Interim Relief’’ ...... 105

(1)

RECKLESS JUSTICE: DID THE SATURDAY 

NIGHT RAID OF CONGRESS TRAMPLE THE 

CONSTITUTION? 

TUESDAY, MAY 30, 2006

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Committee met, pursuant to call, at 9:30 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

quorum for the purpose of taking testimony is present. 

On May 20 and 21, for the first time in 219 years, the Department of Justice entered a Capitol Hill office and removed documents and materials without the involvement of a single legal representative of Congress. Exactly what was taken is known only to 

the Department of Justice. 

Certainly, any Member of Congress who has committed a crime 

insured be prosecuted for his criminal acts, but the issues involved 

in this unprecedented action by the executive branch transcend any 

particular Member. A constitutional question is raised when communications between Members of Congress and their constituents, 

documents having nothing whatsoever to do with any crime, are 

seized by the executive branch without constitutional authority. 

This seizure occurred without so much as lawyers or representatives of Congress being allowed to simply observe the search and 

how it was conducted. Neither was anyone representing the institutional interests of Congress allowed to make a case before a judge, 

raising these important separation of powers issues. 

Our Founding Fathers, Thomas Jefferson and James Madison, 

made clear that a general legislative constitutional safeguard designed to prevent encroachments by the executive branch upon the 

legislative branch is embodied in article I, section 6, clause 1 of the 

Constitution, which provides that Senators and Representatives 

shall not be questioned for any speech or debate in either House. 

The purpose of the speech or debate clause was aptly summarized by the Supreme Court in Eastland v. U.S. Servicemen’s Fund,

in which it stated ‘‘the central role of the clause is to prevent intimidation of legislators by the executive, and accountability before 

a possibly hostile judiciary.’’

The Supreme Court has also stated in United States v. Johnson

that in the American governmental structure, the speech or debate 

2

clause serves the function of reinforcing the separation of powers 

so deliberately established by the Founders. 

In Helstoski v. Meanor, the Court said the clause is vitally important to our system of government. 

In the case of United States v. Brewster, the Court emphasized 

that the speech or debate clause does not confer immunity from 

prosecution for criminal activities upon Members of Congress, because such activities are not legitimate legislative acts. 

However, while bribery and other crimes clearly fall outside the 

scope of the constitutional legislative safeguard, the prior question 

is what procedures should be adopted to determine which Member 

communications are protected by the speech or debate clause and 

which are not. The Supreme Court has made it clear in the Brewster case that it is beyond doubt that the speech or debate clause 

protects against inquiry into acts that occur in the regular course 

of the legislative process. 

In the case of Representative William J. Jefferson, the search 

warrant that the Justice Department obtained from a Federal 

judge allowed for his congressional office to largely be combed over 

with materials, including computer hard drives, placed in the sole 

possession is of the Department of Justice. 

The materials taken very likely include communications created 

in the course of legitimate legislative process that have nothing to 

do whatsoever with the criminal inquiry into Representative Jefferson’s activities. The Justice Department had the ability to seek enforcement of their Federal grand jury subpoena in Federal court to 

obtain the same documents seized from Congressman Jefferson’s 

Capitol Hill office, but chose not to do so. The Justice Department 

has historically used grand jury subpoenas to obtain documents relative to a criminal investigation of a Congressman or Senator. 

On May 25, the President ordered the seized documents sealed 

for a period of 45 days so that Congress and the Department of 

Justice could work out a constitutionally sound solution that will 

allow all materials relevant to any crime to be obtained while protecting innocent legislative materials legitimately protected by the 

speech or debate clause. In doing so, the President has allowed for 

precisely the sort of reasoned deliberation on important issues of 

separation of powers that I expect this hearing to accord with 

today. 

I look forward to hearing from all our witnesses, who will address the propriety of the Justice Department’s conduct in light of 

the Constitution, the separation of powers and the co-equal branch 

of Congress. 

I now recognize the gentleman from Michigan, Mr. Conyers, for 

his opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman, and Members of the 

Committee. This is a historic moment in the House of Representatives. I have been on the Judiciary Committee for 4 decades now, 

and never has anything of this nature come to our attention and 

require that we try to bring the three branches of Government into 

more harmony. 

Now, there is no doubt that Members of Congress are not above 

the law. The Department of Integrity Unit at the Department of 

Justice is a progressive professional unit. They have convicted one 

3

Member of Congress this year already, and have several pending 

investigations. They have the full power of not only the Federal 

Bureau of Investigation, but the grand jury behind them, and they 

can be quite persuasive and resourceful when they are interested 

in obtaining evidence or witnesses in corruption investigations. 

But the procedures employed on the Saturday night in question 

were sloppy at best, but reckless at worst. What we have brought 

down on our heads is 219 years on which, in which, in this history 

of the United States, have been able to avoid the spectacle of the 

Federal Bureau of Investigation swooping down into the Capitol in 

direct confrontation with another duly-empowered police force. 

Ten days after the fact, we have yet to be told why the pending 

subpoena against a sitting Member could not have been enforced 

consistent with the law. We have never been told why this search 

had to be done in the middle of the night at a time when the constitutional Representatives of this body were unreachable. We have 

never learned why the Member in Committee was not permitted to 

have his attorneys present while his offices were searched for some 

18 hours. 

The so-called safeguards utilized by the Department, creating 

their own team to review claims of relevance and the speech request debate clause protections, provide us little constitutional 

comfort. 

Like the rest of the search procedures, they were developed unilaterally by the Department of Justice with little thought given to 

the constitutional prerogatives at stake. I think this is an important and timely hearing, and the witnesses called here are very important. I am looking forward to hearing from them. 

But I think we should keep in mind the threats of the Attorney 

General of the United States as has been reported, to resign over 

this matter. Well, I think that should not go unrecognized, because 

of the torture memorandum put out and developed while Mr. 

Gonzales was the counsel to the President, and later ratified as he 

was the Attorney General, there was a memorandum that stated 

that the President could order officials to commit crimes and that 

the executive branch could violate Federal laws when the President 

viewed it to be in the national interest. 

We have the question of warrantless, domestic wiretaps, which 

did not excite him one bit, and which the President admitted that 

he ordered surveillance under the national—the NSA domestic surveillance program, despite the views of many experts that the operations violate Federal law and constitutes a Federal crime when 

they are not done under the FISA restrictions. 

The Data Mining Corporation recently revealed 10 millions of 

names and phone numbers in a massive data bank that did not incline him to threaten to resign. 

I think, Mr. Attorney General, you are barking up the wrong 

tree, and this is an issue that hopefully Members of the Republican 

and Democratic parties in the Congress can bring to an end. I commend the Chairman of this Committee for calling these hearings 

today. 

Chairman SENSENBRENNER. Thank you, Mr. Conyers. 

The gentleman from Texas, Mr. Gohmert. 

4

Mr. GOHMERT. Thank you, Mr. Chairman. Thank you, witnesses, 

for being here today. It is an important issue that has never been 

dealt with before because of the observation of this delicate balance 

of power. 

I have to confess to you, in my year and a half of becoming a seasoned veteran in Congress, I have been so much more concerned 

about the judiciary overreaching in power, and I really had not 

looked at that time executive function. But since we dealt with the 

PATRIOT Act and the request to make the PATRIOT Act permanent and the struggle over that and then the revelations about the 

NSA and over phone logs and things, and then this following on 

those heels, I have become more concerned. There has been a lot 

of talk about the speech and debate clause in section 6 of the Constitution. 

One of the things that has also intrigued me is section 5 of the 

Constitution that says each House may determine the rules for its 

proceedings, punish the Members for disorderly behavior, and it 

was my understanding that there may have been some talk early 

on in this Nation’s history that perhaps, unlike what we believe, 

should be appropriate, there were those who thought that Congress 

should punish even criminal offenses because it says Members of 

each House may punish their own Members, and that over time it 

has become the practice that, certainly, they are not above the law 

here in Congress, and that they can and will be prosecuted, the 

history being that the House Ethics counsel, when they discover 

any evidence of wrongdoing, would turn those documents over to 

the Department of Justice for prosecution. Because if somebody is 

corrupt, we want them out of Congress. 

I am curious if you might have something to add to that. I know 

you each have prepared statements, and those will be part of the 

record. But I am curious, given your collective wisdom and knowledge about this body and about the executive and the cooperation 

of powers. 

But we appreciate your being here today. I look forward to your 

comments. You know, some people have said you guys are just defending Jefferson, and I agree, if they are talking about Thomas 

Jefferson. But that is the way I see it. I am not defending any 

other Jefferson other than Thomas Jefferson, and the current concerns he had about the Congress and its powers being usurped and 

intimidation from the other branches coming to bear. 

Thank you very much, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, you have 

to begin this discussion with the premise that no one is above the 

law. In that light, no one has said, to my knowledge, anything 

about the fact that Jefferson, Representative Jefferson’s home was 

searched. No one said anything about that. 

There is a suggestion that there is some kind of immunity for 

Congressmen from arrest. You know, there is a temporary immunity from arrest, if you are on your way to voting, the local sheriff 

can’t hold you until the vote is over, but you are ultimately responsible to answer for whatever criminal charges there are. 

5

So no one is above the law, but there is a concern with this because this kind of search hasn’t happened in the history of the 

United States. In over 200 years, it hasn’t happened. It didn’t happen in Representative Cunningham’s case. It didn’t happen in the 

Abramoff investigations. It didn’t happen when Representative 

Traficant was accused of taking kickbacks right from his office. It 

wasn’t used in the bank scandal, or even ABSCAM. 

What is so special about this case that this procedure had to be 

used? I am also concerned about the breadth of the subpoena. I 

think the analysis would be different if the subpoena had been 

based on the fact that a reliable informant had said there is evidence that can be found in the lower left hand drawer, say, the 

money was there. They went in and executed the search warrant, 

came out with the money and left. I think the analysis would be 

a little different than the FBI staying there for 18 hours, rummaging through everything, including documents, which you have 

to read all documents to know what you have, which means all of 

the information, all of the sources. If you are going to have an impeachment inquiry, all that information has to be made sensitive 

information from constituents, all is to be read before you can get 

to anything that you know might be used. 

We have a precedence, a couple of decades ago, that dealt with 

FBI searching newsrooms. I think we are going to hear something 

from the witnesses about what we did in that case because of the 

potential of abuse. Now, at least in this case, at least we had judicial oversight, unlike the NSA wiretaps, up like picking up the telephone numbers, unlike designating somebody an enemy combatant—at least you had judicial oversight. We will hear testimony 

from the witnesses as to whether or not that makes much difference. 

But I appreciate, Mr. Chairman, you calling the hearing. This is 

a very important issue. I look forward to our witnesses’ testimony 

today. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Thank you, Mr. Chairman, I want to thank all of the 

witnesses for being here during a recess. Professor Turley, I am 

confident that we are not going to get locked in today. We have assurances there will be no air hammers used any time anywhere. 

This is, in all seriousness, an extremely important hearing, not because of what we are going to learn, although I know we are going 

to learn that is going to be significant. 

It is extremely important because the American people do not 

begin to understand why there is a concern. Their assumption, 

quite rightfully, is no one is above the law. Hopefully today, undoubtedly today, having looked through your testimony, people will 

begin to understand that it has always been a big deal when one 

branch of Government seeks to use a subpoena or any other form 

of legal document or, for that matter, brute force, to enter and to 

cast some question of the sovereignty of the other branch. 

This was true, as I know we are going to hear in Abraham Lincoln’s time, it certainly was true when this Committee and the Senate Committee sought to receive records from President Richard 

Nixon, went to the Supreme Court. It did not result in the Capitol 

6

Police showing up in the Oval Office and wanting to pull tapes out 

of drawers. 

I hope today that the American people will be the greatest beneficiary of your statements. I very much appreciate your being here 

for just that purpose. I yield back. 

Chairman SENSENBRENNER. The gentleman from Maryland, Mr. 

Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman, thank you for holding this hearing. I thank all the witnesses for being here. I will be 

very brief. I think this is an important hearing. I think, as others 

have said, that there are many other areas where this executive 

branch has exerted their authority, and I think overstepped their 

grounds, and I think it would have warranted a hearing as well, 

in fact, probably warranted one as more or at least as much as this 

hearing. 

We have heard the cases, of course, of the domestic wiretapping 

exercises by the Administration, and what is going on there. We 

have got the continuing practice of signing into law statutes with 

caveats, with signing statements, that essentially reinterpret those 

statutes to the benefit of the executive branch, just imposing their 

view on and their stamp on a law that was passed by Congress. 

I think all those areas warrant hearings. It’s good to see, Mr. 

Turley, Professor Turley and Mr. Fein here. 

In fact earlier, Mr. Conyers had a hearing that we had in the 

basement of this building, on the wiretapping issue, because we 

didn’t have a full Committee hearing in the Judiciary Committee 

dedicated specifically to the issue of domestic wiretap, and we 

haven’t had one devoted to that issue since it was broken by The 

New York Times last December. 

I think, Mr. Chairman, that that also was an example of executive branch action and overstepping. I not sure to the extent there 

was overstepping in this particular issue. I am very interested in 

hearing the testimony. 

As Mr. Scott said, a warrant was issued flew the judicial branch, 

so I am sort of open-minded with respect to this particular constitutional question. I think there have been other incidents, as I 

alluded to, where the overstep being of the executive branch was 

even more clear. I hope, as we go down the road, we will look into 

those issues as well. 

Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Thank you, Mr. Van Hollen. 

Without objection, all Members will have 5 legislative days in 

which to submit additional materials for the hearing record. 

I would now like to introduce our witnesses for today’s hearing. 

The first witness is Professor Charles Tiefer of the University of 

Baltimore Law School. Before joining the faculty there, Professor 

Tiefer was Assistant Legal Counsel to the United States Senate 

from 1979 to 1984. He then served as the Solicitor and Deputy 

General Counsel for the U.S. House of Representatives from 1984 

to 1995. 

Professor Tiefer has written extensively on separation of powers 

issues, and he is the author of the only treatise on congressional 

practice and procedure. He is a graduate of Columbia College and 

the Harvard Law School. 

7

Our second witness is the Honorable Robert S. Walker, who represented the Sixteenth District of Pennsylvania for 20 years. During his tenure in the House, former Congressman Walker served as 

Chairman of the Science Committee as well as chief deputy, Republican whip. He currently serves as Chairman of Wexler & Walker 

Public Policy Associates, a Washington-based government affairs 

firm. 

The third witness is Professor Jonathan Turley of the George 

Washington University Law School. Professor Turley is a nationally recognized legal commentator and constitutional scholar. He is 

a graduate of the University of Chicago and Northwestern University School of law. 

Our fourth and final witness is Mr. Bruce Fein, who is a principal at the Lichfield Group. Mr. Fein served as Assistant Director 

at the Office of Legal Policy at the Department of Justice, and he 

is the author of several volumes on the U.S. Supreme Court and 

the U.S. Constitution. He is a graduate of Harvard Law School. 

Chairman SENSENBRENNER. I welcome all of the witnesses and 

look forward to hearing your testimony. It is the practice of this 

Committee to swear in the witnesses. So would you all please rise 

and raise your right hand. 

[Witnesses sworn.] 

Chairman SENSENBRENNER. Let the record show that each of the 

witnesses answered in the affirmative. Usually we have a 5-minute 

rule here. What I will do is be very liberal in exercising the 5-

minute rule, but the lights will be on. When 5 minutes is up, there 

will be a red light in front of you. So if you would kind of wrap 

it up at your own pace, and then we can get to questions. 

Professor Tiefer. 

STATEMENT OF CHARLES TIEFER, PROFESSOR,

UNIVERSITY OF BALTIMORE LAW SCHOOL 

Mr. TIEFER. Thank you, Mr. Chairman, Mr. Ranking Member 

and Committee Members. I was Solicitor and Deputy General 

Counsel of the House from 1984 to 1995. That is the office that represents the bipartisan leadership group of the House of Representatives in court. 

The Framers’ purpose in the speech or debate clause of the Constitution was ‘‘to prevent intimidation by the executive’’ of the Congress. That’s the Supreme Court’s term, ‘‘intimidation.’’ The clause 

applies to all the records in the Congress of legislative activities, 

not just floor speeches and bills, but most of the work in Committees and legislative caucuses. 

Its privilege is not that it puts Members above the law, Members 

are frequently investigated, frequently charged, frequently tried, 

frequently convicted. But it is an absolute privilege against law enforcers getting or seeing or using the legislative records that I just 

talked about. 

During my 11 years in service for the House, and 4 years in a 

similar Senate office before then, many investigations occurred successfully of Members of Congress. I have cited some of them in my 

testimony. They started with ABSCAM, which occurred soon after 

I started work. We had Congressman Flake, Congressman Biaggi, 

Congressman Rostenkowski, Congressman Swindall, Congressman 

8

McDade. Several of these were acquitted, several of these were convicted. The process succeeded. It worked. Not during that time, not 

before then, not since then, in 2 centuries has the Justice Department ever resorted to a raid on Congress to get its evidence. 

Now, this raid had all the elements of unconstitutional executive 

intimidation. It breached what I have just described, a previously 

sacrosanct constitutional tradition without, not just without a 

showing of a unique necessity, but not even a claim of unique necessity. If you read carefully, the materials that had been reached 

by the executive branch, it does not claim that there was some exigent circumstance necessitating a new method. There is not a claim 

that even one piece of paper would have been lost by the traditional methods. 

It was planned wrongly. There were no executive guidelines 

worked out with the House’s protocols, no prior adversary judicial 

proceedings, no prior notice to the House leadership, nor any kind 

of consent or consultation, which meant that there was no dealing 

with the very serious objections that would have been made, that 

I would have made during my time, my predecessors, my successors, that anyone, knowing the constitutional, institutional interest 

of the House, would have made. Now we look at those methods. 

What were those methods? I think that the opening statements 

of the Chair and the Ranking Member and the other Members 

have ably brought out what was involved in those methods, sweeping, indiscriminate, wholesale search by the FBI of the entire office 

of this Member for 18 hours during the night, and the downloading 

of the whole hard drive of his computer, besides carting away 

reams of documents. 

When they take the whole computer of a Member of Congress, 

that means you are catching countless innocent constituents in 

there in your dragnet. Since every congressional office contains extensive privileged legislative materials, because that is what the 

Members are here to do, legislative work. That means that they are 

inevitably Wall Street, a wholesale constitutional violation, a 

wholesale intrusion by executive agents, in an intimidating way of 

legislative materials. 

Furthermore, there was the exclusion of the House counsel, even 

as a mere observer, and neither the Representative nor any counsel 

were enabled to make privileged objections. 

Instead, the Justice Department appointed itself to look into everything, and to decide for itself what was privileged. I have to tell 

you that with 15 years experience doing this work, I couldn’t figure 

out what is legislative or not without the Member or staff putting 

it in context for me. I don’t see how they could during that night, 

and I don’t think they did. I think that each FBI agent could have 

trampled 1,000 privileged pages and most likely did. 

Thank you, Mr. Chairman, and Members. 

[The prepared statement of Mr. Tiefer follows:]

9

PREPARED STATEMENT OF PROFESSOR CHARLES TIEFER


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Chairman SENSENBRENNER. Mr. Walker. 

STATEMENT OF THE HONORABLE ROBERT S. WALKER, CHAIRMAN, WEXLER & WALKER, AND FORMER MEMBER OF CONGRESS FROM THE STATE OF PENNSYLVANIA 

Mr. WALKER. Mr. Chairman, Mr. Ranking Member and distinguished Members of the Committee, when the Republicans assumed the majority in 1995, one of our key missions was to have 

Members treated under law like other citizens. Some would have 

you believe that this particular case is all about such distinctions, 

but what we are discussing today is not about special rights for individual Congressmen, but the inherent rights the Constitution 

provides for Congress under the separation of powers doctrine. 

No citizen, including a Member of Congress, is above the law, but 

no agency is above the Constitution. America’s great experiment as 

a constitutional republic rests upon those understandings. Somewhere in the Rayburn raid, the value of these fundamental understandings got lost. 

The Justice Department and the Federal Bureau of investigation 

have a duty under law to prosecute those citizens, including Members of Congress, who break the law. What they cannot do is use 

extra constitutional means to carry out their duty. Abandonment of 

fundamental law in the pursuit of upholding the law is a recipe for 

constitutional crisis. 

There are ways of obtaining needed information for criminal 

prosecutions that have served us for 219 years, including the use 

of subpoenas. The idea that the Justice Department was without 

recourse in the Jefferson matter is completely without merit. 

The American people should be deeply concerned that a decision 

to abandon tradition and conduct a raid on Congress was made 

consciously and evidently at the high levels inside of the Justice 

Department and the FBI. Press reports indicate that this was no 

casual decision but a conscious decision to act in an unprecedented 

way. The fact that this decision making process went on with no 

attempt to gauge the reaction of congressional leaders is wrong. 

Now, there are lots of places to look to affix blame for this breakdown of precedent and tradition. The issue before you goes well beyond the facts of a particular alleged criminal case, but the Member involved certainly helped precipitate the situation with his noncooperation with authorities. The immediate issue may have been 

the Member’s noncooperation, but the raid was on a co-equal 

branch of Government and threatened its unique status in our constitutional system. 

It might also be noted that Congress’ inability to maintain a 

working ethics process also contributed to an atmosphere conducive 

to the Justice Department’s action. In addition, the warrant demanding Capitol Police cooperation with a raid on the institution 

that they are duty bound to protect denotes a casualness on the 

part of the judge about the unprecedented step and questionable 

procedures he was approving. 

Congressional leadership must seek an explanation for the seemingly oblivious nature of the warrant process. While recognizing 

that the roles regarding criminal activities are different between 

the Congress and the executive branch, imagine a situation where 

24

the situation was reversed. One can only imagine that the concern 

would be if the Capitol Police were sent on a raid of an executive 

agency in pursuit of Congress’ oversight function. 

My recommendations to Congress for appropriate reaction to the 

Justice Department action are as follows. One, avoid tying the Jefferson criminal investigation to the institutional prerogatives of the 

Congress. The legal focus of Congress should be on definition of the 

separation of powers issue to assure protection of its constitutional 

role. In no case should Congress appear to be interfering with 

criminal prosecutions of its Members conducted inside the bounds 

of constitutional authority. 

Two, it is possible to create a set of procedures and protocols to 

cover search warrants the Department of Justice might want to 

execute on a congressional office, but such procedures and protocols 

can and should be worked out consistent with the speech or debate 

clause. 

Three, demand a full accounting for the decision making process 

that led to the Rayburn raid. The Judiciary Committee should be 

prepared to subpoena documents tied to this incident. 

Four, institute processes for appointed congressional officials and 

employees to follow in the event of incidence of a similar nature. 

If the Rayburn raid was a precedent for coming attractions and intimidating tactics, the way Congress responds initially must be improved. 

Five, seek an explanation for what seems to be a lack of judicial 

respect for the traditions and precedence that have insulated legislative deliberations from the threat of overzealous exercise of executive power. As the Justice Department rationale has played itself 

out over a period of several days, it is clear that they believe that 

the ends justified the means in pursuing their case against Congressman Jefferson. 

But the means deployed violated precedent, tradition and possibly constitutional parameters. Nothing in the Forefathers’ view of 

representation Government was more important than protecting 

Representatives from the unfettered use of executive authority. So 

they used the means of Governments to restrict that authority. 

By substituting ends to means, the Justice Department has 

sought to redefine a relationship 219 years in the making. They did 

so purposefully and with malice aforethought, and they have 

sought to use the sordid details of the Jefferson case as an excuse 

for the unprecedented incursion into the fundamental legislative 

rights. 

It is a constitutional tragedy that this incident happened, a tragedy that will only be compounded if allowing ends to justify the 

means is permitted to stand unchallenged by a Congress unwilling 

to stand firmly for its most basic obligations to governance and posterity. 

Chairman SENSENBRENNER. Thank you, Mr. Walker. 

[The prepared statement of Mr. Walker follows:]

PREPARED STATEMENT OF THE HONORABLE ROBERT S. WALKER

Mr. Chairman, 

No citizen, including a Member of Congress, is above the law. But no agency is 

above the Constitution. America’s great experiment as a constitutional republic 

25

rests upon those understandings. Somewhere in the Rayburn raid, the value of 

these fundamental understandings got lost. 

The Justice Department and the Federal Bureau of Investigation have a duty 

under the law to prosecute those citizens, including Members of Congress, who 

break the law. What they cannot do is use extra-constitutional means to carry out 

their duty. Abandonment of fundamental law in pursuit of upholding the law is a 

recipe for constitutional crisis. 

The American People should be deeply concerned that a decision to conduct a raid 

on Congress was made consciously and evidently at high levels inside the Justice 

Department and the FBI. Press reports indicate that this was no casual decision, 

but a conscious decision to act in an unprecedented way. The fact that this decisionmaking process went on with no attempt to gauge the reaction of key congressional 

leaders is wrong. 

The issue before you goes well beyond the facts of a particular alleged criminal 

case. The Member involved certainly helped precipitate the situation with his noncooperation with authorities, but that does not obviate the circumstances that led 

to an attack on the institutional prerogatives of the Congress. The immediate issue 

may have been a Member’s non-cooperation, but the raid was on a co-equal branch 

of government and threatened its unique status in our constitutional system. 

The warrant demanding Capitol Police cooperation with a raid on the institution 

that they are duty bound to protect denotes a casualness on the part of the judge 

about the unprecedented step and questionable procedures he was approving. Congressional leadership must seek an explanation for the seeming oblivious nature of 

the warrant process. 

While recognizing the difference in roles regarding criminal activities, imagine a 

case where the situation was reversed. 

My recommendations to Congress for appropriate reaction to the Justice Department’s action:

1. Avoid tying the Jefferson criminal investigation to the institutional prerogative of Congress. The legal focus of Congress should be on definition of the 

separation of powers issue to assure protection of its constitutional role. In 

no case should Congress appear to be interfering with criminal prosecutions 

of its Members conducted inside the bounds of constitutional authority.

2. Demand the return of any files taken during the Rayburn raid (as the leadership has already done) and be prepared to pursue this demand all the way 

through the Supreme Court. Materials seized in the Rayburn raid clearly included constitutionally protected legislative documents and files.

3. Demand a full accounting for the decision-making process that led to the 

Rayburn raid. The Judiciary Committee should be prepared to subpoena documents tied to this incident.

4. Institute processes for appointed congressional officials and employees to follow in the event of future incidents of a similar nature. If the Rayburn raid 

was a precedent for coming attractions and intimidating tactics, the way 

Congress responds initially must be improved.

5. Seek an explanation for what seems to be a lack of judicial respect for the 

traditions and precedents that have insulated legislative deliberations from 

the threat of overzealous exercise of executive power.

Chairman SENSENBRENNER. Professor Turley. 

STATEMENT OF JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE 

WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. TURLEY. Thank you, Mr. Chairman, Representative Conyers, 

Members of the Committee. It is a great honor to appear today. I 

have been assured by the House Judiciary Committee that unlike 

the House Intelligence Committee, I will be allowed to leave at the 

end of my testimony. But just in case, I brought snacks if things 

go badly. 

On a more serious note, we are here for a serious purpose. There 

have been very few times that this House has faced a moment of 

self-definition, where your identity and your dependence are at 

issue. The raid on this office of Representative Jefferson represents 

26

a profound and almost gratuitous insult to a co-equal branch of 

Government. 

In the history of this country, no President has ever ordered or 

allowed a search of the office of a sitting Member of this House. 

Now, there is a reason for that, that over 200 years this hasn’t occurred. It is not because there has been a lack of interest of criminal investigators. There have been many investigations and many 

prosecutions. But there has been a tradition of mutual respect and 

mutual restraint between the branches. 

What occurred on that Saturday shattered that tradition. Now, 

many of our most important constitutional values and traditions 

are not spelled out jot-for-jot in the text of the Constitution. They 

are part of a long-standing term of engagement between the 

branches. As I have laid out in my written testimony, there is a 

long history, and there is a long constitutional record to support 

the privileges of this House. 

This is a question of means. It is a question of scope. This search 

was an abuse because it was unnecessary, and it was excessive, 

and it did great violence to the values of our constitutional system. 

Now, I was asked once, what was the most important authority 

I could cite to this Committee by a reporter last week, and my response was that I would have every Member read Robert Frost, 

Mending Wall, because like that poem, the Constitution believes 

that good fences make good neighbors. That’s the whole principle 

of the separation of powers. Good fences make good neighbors. 

We have a tripartite system that creates walls, and there is no 

tension in that system because no branch has the authority to govern alone. So each branch minds the wall, minds its authority, 

minds its domain. To put it bluntly, the President did not prove to 

be a good constitutional neighbor. 

Now, as this Committee knows, there have been a series of separation of powers and controversies that have occurred over the last 

3 years. I mention some of them in my statement. I will not go into 

those. It was purely for the cathartic value of knowing that we are 

in a crisis and one that this Committee, I commend, for holding a 

hearing to look at this incident in that context, because it is a disturbing mosaic. 

The walls of the Constitution are found in the first articles, the 

first three articles, of that document, as well as other parts. But 

the first three articles contain those structural limitations, including section 6 of article I. It was put there to protect the independence of this body from intrusions by both the executive and the judicial branches. 

The mere fact that this search occurred with the authority of a 

Federal judge does not mitigate the problem. The Framers anticipated that it would occur that two branches would turn on a third 

branch. In all of the references to the clause in the Supreme Court, 

it is often the executive and judicial branch that are discussed together in terms of the dangers that this clause is meant to avoid. 

In our system of Government, it matters how you do something, 

not simply whether you do it. No one is suggesting that Congressman Jefferson is above the law or that any Member of this House 

is above the law. That would be facially absurd. 

27

No one is suggesting that a Member of Congress cannot be investigated. No one is suggesting that a Member of Congress may 

squirrel away incriminating evidence in their office. This is a question about means, and the means used here gave great constitutional offense. 

In my testimony, I go through the various reasons why the 

search was so offensive. One of them is the availability of other 

means. What is most baffling about this search is that the affidavit 

that accompanied the search, that secured the warrant, stated, 

under oath, that the Government has exhausted all other reasonable methods to obtain these records. 

In my view, that’s facially untrue, because there are methods 

that could have obtained these—this material, without doing such 

a great constitutional insult to this body. It has been done for over 

200 years. They could have sought a court order to compel Congressman Jefferson to comply. If that order was ignored, they could 

have sought an order for his incarceration. 

Second, they could have sought in the court procedures to allow 

for the turning over of this material, that is part of the traditional 

method of the subpoena approach. 

Third, they could have sought to seal the material or the office 

by simply going to the House with a legitimate law enforcement interest so that no material would have been in danger of being lost 

or destroyed. Finally, they could have sought direct action against 

a Member here if he refused to comply, which I quite seriously 

doubt. 

The scope of the search is equally troubling. There is no question 

that this search did acquire a large amount of legislative material 

covered by the clause. The Supreme Court has said that what constitutes legislative material is broadly defined to achieve the purse 

of the clause. The hard drive of the computer is of particular concern. 

By taking the hard drive of a Member, it’s akin in the Framers’ day of taking every single piece of paper out and a Member’s office. 

If they had went in and removed every single piece of paper, people 

would not be debating how serious that is, but today that is exactly 

what happens when you take a hard drive. 

There was a lack of exigency. This target of the search knew 8 

months ago that they wanted to get this material. During that period no reasonable effort was made to use alternative methods. 

I have suggested in my testimony that this court, this Committee, consider enacting a law that is analogous to the Privacy 

Protection Act that protects the media from the use of search warrants against their office. That was a wonderful decision, a wonderful law created by this Congress to protect the first amendment 

rights of journalists. You should have less protection under statutory law. 

Let me first conclude that when Frost wrote the Mending Wall, 

he noted ‘‘Something there is that doesn’t love a wall.’’ We know 

in separation of powers, that is very true because all branches have 

chafed at the walls that confined them. 

But good fences make good neighbors, and you have mended that 

wall, and you have maintained it. We have to remember that it is 

your duty. This is the people’s House, not yours, not Representative 

28

Jefferson’s. We expect you to return this institution in the same 

condition you found it, as an independent and vigorous representative body. Anything else would be a betrayal, not just of yourselves, 

but of your institution. 

Thank you. 

Chairman SENSENBRENNER. Thank you, Professor Turley. 

[The prepared statement of Mr. Turley follows:]

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PREPARED STATEMENT OF JONATHAN TURLEY


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Chairman SENSENBRENNER. Mr. Fine. 

STATEMENT OF BRUCE FEIN, PRINCIPAL,

THE LICHFIELD GROUP, INC. 

Mr. FEIN. Mr. Chairman and Members of the Committee, checks 

and balances are every bit as indispensable to our civil liberties as 

the Bill of Rights. Yet the Bush administration has been bent on 

a scheme for years of reducing Congress to akin to an extra in a 

Cecil B. DeMille political extravaganza, signing statements that 

are the equivalent of line item vetoes, the assertion of executive 

privilege to deny Congress any authority to oversee executive 

branch operations, a claim of inherent presidential authority to 

flout any statute that he thinks impedes his ability to gather foreign intelligence, whether opening mail, conducting electronic surveillance, breaking and entering, or committing torture. 

This latest use of a search warrant by the executive branch to 

rummage through the files of a Member’s office is simply an additional instrument of the Bush administration to cow Congress. It 

is exceptionally important that the Congress respond clearly and 

authoritatively with a statute that rejects the authority of the executive branch, whether or not a search warrant is authorized by a 

judge, to look through the files of a Member’s office and glance at 

legislative protected materials under the speech or debate clause. 

That kind of authority can be abused to intimidate, to cow Congress into submission to executive desires. 

Principles unchecked lie around like loaded weapons, and they 

will be used whenever an urgent need the claimed by the incumbent. That is why it is so important to reject the principle involved 

in the search warrant, not focus on the details of the Jefferson warrant and search. 

The speech or debate clause is violated whenever the executive 

branch would obtain a search warrant that would require reading 

the files of a Member’s office in order to determine whether any of 

the documents fit the demand of the search warrant. That is the 

only way in which a search warrant for documents can be implemented. You have to read every file to know whether or not it identifies something in the search warrant. That inescapably means 

when you are searching a legislative office, you must come across 

speech or debate protected materials. 

As soon as the FBI looks at those documents and reads it, comes 

across, perhaps, sensitive political strategy, information in the 

hands of a Member, questions that might be asked during oversight hearings, the violation occurs. The memory of the official cannot be erased. It is then part of the executive branch apparatus 

pool of knowledge that can be utilized to implement the power, to 

cripple the congressional oversight and legislative function. 

In my judgment, it makes no sense to be satisfied with protocols 

with the Department of Justice asking us that warrants be administered in particular ways. Because the breach occurs whenever 

there’s an obligation to open your files to the executive branch, 

under any circumstances. 

That is exactly why this Congress in 1980, after the Supreme 

Court’s decision in Zurcher v. The Stanford Daily, held that the 

FBI, under the fourth amendment, could raid press offices and enVerDate 0ct 09 2002 14:03 Sep 07, 2006 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 G:\WORK\FULL\053006\27794.000 HJUD1 PsN: 27794
47

acted the statute when it comes to the work product of the press, 

it doesn’t matter how important to proving a crime, it’s off limits. 

A subpoena can be utilized. If it is frustrated, it is more important 

that criminal justice be frustrated than that we have a timid and 

effete free press. 

That is the same judgment the Founding Fathers made with regard to the speech or debate clause. It is different than any other 

clause protecting executive branch or judicial deliberations. It is expressed in the text. The Founding Fathers worried that Congress 

would be too weak, not too muscular. It worried about an executive 

branch and judicial branch that would deter Congress from asserting the prerogative that comes from the people directly. 

That is why, I think, it would be misplaced to try to focus on any 

analogies with regard to searching executive branch or judicial 

branch offices, because they lack that explicit constitutional Constitution enshrined in article I, section 6. 

Of course, the Founding Fathers were not so foolish to think that 

all Members would be saints. There would be some who would go 

astray. There are ample methods under the law in the Constitution 

that can prove criminal activity of a Member without requiring 

rummaging through their files. I underscore ‘‘files,’’ because that is 

what is protected by the speech or debate clause, not cash, not evidence, an instrumentality of crime, drugs, a handgun, a corpse. 

Many of the of attempts to satirize the claim of privilege have 

attempted, I think, to distort what is at issue here by suggesting 

how foolish it would be that you couldn’t walk into an office and 

see demonstrative evidence of crime and seize it. Of course you can. 

You are not trenching on the speech or debate clause. 

But when it comes to documents, the only way you can search 

is to read everything. When you read everything you encroach on 

the speech or debate clause. I would urge Congress to act swiftly 

in protecting the Members, not because we prefer that crime go 

unpunished, but the institution prerogative is so important to our 

institutional liberties, it is also, I think, wrong to suggest that simply because a Member provokes an investigation by the executive 

branch that, therefore, there must be guilt. 

Oftentimes, investigations are unable to prove any wrongdoing. 

This Administration seems to operate on the assumption that the 

only people who would object to any of their investigative methods, 

electronic surveillances without warrants or otherwise, being identified as an illegal combatant and held forever without judicial review, are those who must be held guilty in wrongdoing. 

But the law and the investigators get it wrong oftentimes. That 

is why we have procedural protections. The executive branch can 

make errors. It’s not infallible. We locked up 120,000 JapaneseAmericans in World War II based on the fallacious belief they were 

all plotting treason or some sort. 

I would urge the Congress to work with the Senators and the 

President himself in crafting this legislation. It should not come 

apart because of a sense that this branch is in a position of selfprotection and indulging its own Members. You are operating here 

in defense of separation of powers. That’s the highest calling of any 

member of the executive branch. 

48

I would look to close also with the comment on the so-called 

threat of the Attorney General, the deputy attorney general, to resign if the speech or debate clause is enforced. Well, let them resign. 

I am astonished that the President wouldn’t have fired them for 

undertaking this action without consulting him in advance. This is 

not esoteric constitutional law. Article I, section 6 is very explicit. 

If the Justice Department feels the need to resign, so much the better. We need people there who respect the law and the Constitution 

rather than those who believe their mission is to aggrandize the executive branch. 

Thank you. 

Chairman SENSENBRENNER. Thank you, Mr. Fein. 

[The prepared statement of Mr. Fein follows:]

PREPARED STATEMENT OF BRUCE FEIN

Dear Mr. Chairman and Members of the Committee, 

I am grateful for the opportunity to share my views on the Executive Branch’s employment of search warrants in criminal cases to seek documentary material in 

various formats located in the office of a Member. The issue has come to prominence 

because of the unprecedented search of Congressman Jefferson’s office for documentary evidence of suspected bribery or fraud. I respectfully submit that such warrants 

conflict with the purpose if not the letter of the Speech or Debate Clause because 

they inescapably expose legislative acts to the prying eyes of the Executive. I would 

urge Congress to enact a statute that would prohibit search warrants for documents 

in legislative offices comparable to the protection afforded the news media under the 

Privacy Protection Act of 1980. That would not leave criminal investigators helpless. 

They could still employ subpoenas to obtain relevant documents, and obtain contempt sanctions for unjustified refusals to comply. In some cases, the Fifth Amendment privilege against compulsory self-incrimination might frustrate the subpoena 

and the criminal investigation. In other cases, a Member might prefer contempt 

sanctions to compliance. But the Speech or Debate Clause premise is that insuring 

a fearless and uncowed legislative branch in some cases should trump criminal law 

enforcement. 

The Founding Fathers were alert to the danger of entrusting to the executive 

branch or the judiciary powers to investigate, prosecute, or punish alleged criminal 

activity of Members through proof of legislative acts, including intramural correspondence and political strategy. Such a Sword of Damocles would deter Members 

from opposing legislation championed by the President or conducting forceful oversight. The Executive’s discretion to investigate is virtually limitless. As then Attorney General Robert Jackson lectured in 1940, the countless technical statutes in the 

federal code invite prosecutors to select political opponents as potential criminals 

and then scour the books to pin an offense on them, in lieu of discovering a crime 

and then searching for the culprit. The Speech or Debate Clause answers this potential prosecutorial abuse as regards Members by categorically prohibiting the use of 

legislative acts to prove a crime, i.e., those things generally said or done in the 

House or Senate in the performance of legitimate official duties, such as fashioning 

political strategy for passing or defeating a bill or investigating the Executive 

Branch. The Founding Fathers thought it more important that crime escape punishment than that the Congress lose its force as a check against executive usurpations 

or folly. 

Search warrants for documentary evidence in legislative offices are irreconcilable 

with the Speech or Debate Clause. A search warrant allows the F.B.I. to ransack 

the files of a Member, reading each and every document in hopes of discovering 

those described in the warrant. But legislative office files invariably include volumes 

of documents within the protection of the Clause, for example, correspondence with 

colleagues concerning pending or potential legislation, strategy for ‘‘killer’’ amendments, or questions for Executive Branch officials in oversight hearings. The Clause 

is offended the moment the F.B.I. peruses a constitutionally protected legislative 

document. Even if the document is not seized, memory of its political contents remains in the Executive Branch for use in thwarting congressional opposition or 

leaking embarrassing political information. Documentary searches are further intimidating to Congress because the ‘‘plain view’’ doctrine of the Fourth Amendment 

would entitle the F.B.I. to seize any material in the course of reading office files 

49

concerning crimes unconnected to the search warrant. The knowledge by a Member 

that the F.B.I. can make an unannounced raid on his legislative office to read and 

rummage through every document or email is bound to discourage Congress from 

the muscular check against the Executive that the Speech or Debate Clause was calculated to foster. 

A subpoena in lieu of a search warrant would permit Members to produce only 

the specific documents requested and avert executive prying into confidential legislative acts. A subpoena admittedly might not prove as effective. The Member might 

invoke the Fifth Amendment to decline production. And even if a court ordered compliance, a Member might prefer contempt sanctions to F.B.I. agents ransacking his 

office files. In other words, while requiring subpoenas and banning search warrants 

to obtain documentary evidence in a Member’s office could conceivably derail a 

criminal investigation, that price was anticipated by the Speech or Debate Clause 

to vindicate the Constitution’s separation of powers. 

I would thus urge Congress to enact a statute as a necessary and proper adjunct 

to the Speech or Debate Clause as follows: ‘‘No search warrant in a criminal investigation shall be issued to obtain documents located in the office of a Member of 

Congress. A violation of this prohibition shall result in the suppression of any evidence that would not have been discovered but for the illegal search and the 

expunging of such evidence from the records of the Executive Branch. This law shall 

apply retroactively.’’

It might be said that the statute is a ‘‘special interest’’ law to protect Members 

of Congress and clashes with the constitutional prohibition on titles of nobility. But 

the Speech or Debate Clause is expressly and inherently a special protection for 

Members in recognition that there are occasions when criminal justice should be 

subordinated to the more compelling political interest and in a fearless Congress. 

The Clause might be likened to the President’s pardon power, which permits the 

frustration of criminal justice to advance competing interests. Moreover, the proposed statute frowning on search warrants for documentary evidence in Members 

offices would work no novelty. The Privacy Protection Act of 1980 shields the work 

product of the media from search warrants. Pursuant to the Act, limitations are 

erected by Department of Justice regulations, 28 C.F.R section 59, for search warrants seeking documentary materials in the possession of persons not suspected of 

crime, with special deference to confidential relationships as may exist between lawyer and client, doctor and patient, or clergyman and parishioner. 

Today, the Speech or Debate Clause is more important than at the Constitution’s 

inception. Then, federal crimes were few and criminal investigations of Members a 

rara avis. It was not until the 20th century that Members began to be targets of 

Executive Branch criminal investigations. And as the federal criminal code has dramatically thickened, the opportunity for the Executive Branch to contrive an excuse 

for raiding the files of a Member has correspondingly expanded. That strengthens 

the reason for this Congress to erect an impenetrable barrier between federal criminal investigations and the official files of Members. Separation of powers is too important to be left to the discretion of the President.

Chairman SENSENBRENNER. First of all, let my say that I think 

your suggestion and the suggestion of Professor Turley that the 

Congress be given the same protection of its work product that the 

news media has following its work product, following the Stanford 

Daily case, is a good one. 

This congressional Committee will be working promptly in drafting legislation to implement this, and we will be working with the 

Senate and consulting with the White House on this. 

The issue really is one of procedure, rather than one of the allegations of criminality by Mr. Jefferson. I think that we want to 

make sure that when the next Congressman is investigated for illegal activity, that the procedure done by the Justice Department is 

right. So I think this law will help the Justice Department get it 

right next time because they didn’t get it right this time. 

The second point I would like to make is that I would like to 

have at least two more hearings on this subject, another hearing 

where people such as yourselves can talk about the historic and 

50

constitutional arguments as a result of the speech and debate 

clause evolving over the last 219 years. 

Then I want Attorney General Gonzales and FBI Director 

Mueller up here to tell us how they reached the conclusion that 

they did. Because I think all of you have said that reaching that 

conclusion is profoundly disturbing, not in the context of the Jefferson investigation, but in the context of separation of powers and 

preventing the Congress from being intimidated by the executive 

branch, and thus not being able to do the job that we were elected 

to do. 

Having said that, Mr. Fein, schedule B of the search warrants 

lists ‘‘items to be seized from Representative Jefferson’s congressional office.’’ That has all been redacted by the Justice Department. 

Whatever is on that list, and I think only the Justice Department 

knows, shouldn’t someone representing the institutional interests 

of a co-equal legislative branch of Government have been given the 

opportunity to argue to a court whether or not the procedures and 

the list comported with constitutional norms were not? 

Mr. FEIN. Well, that certainly would have been the appropriate 

thing to do. After all, the FBI is not schooled in speech or debate 

clause. They wouldn’t necessarily know whether they were coming 

upon a protected document or not. At least someone in the legislative branch could alert the judge and have perhaps special descriptions of documents that could not be examined in the execution of 

this warrant. 

But I come back, Mr. Chairman, to the idea that inherent in executing any search for documents is going to necessitate someone 

rummaging through that official file. It’s going to require reading 

legislative protected materials. You can’t expunge memory. Once 

you have read it, the violation has occurred. That’s the same reason why this Congress enacted the Privacy Protection Act for the 

news media. 

Once the constitutional resource is discovered in rummaging 

through the press files, the name doesn’t just fall away by amnesia. 

That is why I think this broad-based statutory protection is indispensable, even though procedural mechanisms could alleviate the 

danger. 

Chairman SENSENBRENNER. Also, isn’t the issue very similar to 

testimonial privileges that are given to clients of lawyers and patients of doctors and penitents who confess their sins to priests, in 

that the determination of what is privileged or not belongs to the 

person who has the privilege, rather than someone who wants to 

look at privileged material and then determine whether or not it 

is privileged after seeing it all? 

Mr. FEIN. That’s correct, Mr. Chairman, and in connection with 

the Privacy Protection Act that created this blanket protection for 

the news media, was also a section title 2, that required the Department of Justice to issue regulations that specifically would protect the lawyer-client, doctor-patient, clergy-parishioner privilege 

from unmitigated search warrants and requiring some sort of incamera judicial review of a warrant to determine whether or not 

they were protecting materials. 

51

So those relationships have been protected especially by regulation demanded by this Congress. But the Congress here has a superior claim of privilege. It is written right into the Constitution of 

the United States and is so critical to vindicating separation of 

powers that transcends these other confidential relationships that 

are important but don’t have that constitutional stature. 

Chairman SENSENBRENNER. Thank you very much. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I want to thank the 

witnesses in particular. This is a very appropriate group of four, 

well-trained experienced people, coming before us to advise the 

Committee, and, by extension, the American people of the gravity 

of the problems that we face. 

Now, was it proper for the Justice Department to prevent the 

House counsel, as well as the Congressman’s attorney, from being 

permitted to be present while his offices were searched for some 18 

hours? What were they trying to do, Professor Turley, in that particular sorry exercise of authority? 

Mr. TURLEY. Well, that’s one of the most baffling aspects of the 

search. The ironic thing is that when the House general counsel 

said, can I be present to witness the search, she was actually suggesting something that would have been of great benefit to the executive branch. 

If they had simply allowed her in the room, they could have 

claimed some element of mitigation, some aspect of moderation. 

Excluding her was an extraordinary act. All she wanted to be able 

to have a legislative official present. It really does cross over into 

raw arrogance to tell such a legislative official, we won’t even let 

you stand in the office. 

As for the attorney, rule 41 of Federal Rules of Criminal Procedure, anticipate that an attorney or the subject of a search will be 

present. Most search warrants, as those of us who practice criminal 

defense law will tell you, most search warrants will have an inventory provision where you actually sign off as to what was taken. 

For the FBI to say it’s no longer our policy to allow someone 

present during such a search once again brings up this question of 

whether we now have such unbridled authority and arrogance that 

the executive branch will not even allow witnesses to the execution 

of its authority. 

Mr. CONYERS. Professor Tiefer, what do you think was behind 

the fact that we haven’t ever had this happen before in 219 years? 

Was there some motivation that still wasn’t clear on the part of the 

Department of Justice to act in the face of all the restrictions that 

have been recited here this morning? 

[10:30 a.m.] 

Mr. TIEFER. Mr. Conyers, I tried to understand both from what 

records we have and from information that the FBI has leaked to 

the newspapers what the surrounding circumstances were here. 

There is no sign whatsoever of a claim by the Department of Justice, as I said in my opening statement, no claim, nor could there 

be, but the point is they are not even claiming they were facing an 

emergency, facing exigent circumstances, facing a situation where 

they couldn’t get at the evidence the same way. They were simply 

in a hurry. 

52

They seemed to have been in a hurry because they got themselves into a problem with an appeal from a proceeding in another 

district, and they didn’t move that appeal along fast enough and 

they weren’t willing to do, as Professor Turley suggested, to apply 

to a District Court for a court order, something which they could 

always do which could allow adversary proceedings and could involve supervision of the methods and could involve consultation 

with the congressional leadership and could involve some protocols, 

and would have brought us closer to the tradition of the last two 

centuries. 

There has not been any suggestion whatsoever as to why there 

was a need to break with that tradition. They are investigating a 

Congressman. Is it different from all the other prior investigations 

of Congressmen? No. 

Mr. CONYERS. Congressman Walker, the part that disturbs me as 

much as any other is that they told the Capitol Police that they 

were going to break down the doors of this congressional office if 

they didn’t stand aside and let them in without any further to do, 

and it seems to me that that was really an act of threatened violence that goes way, way across the line. 

Mr. WALKER. Well, I certainly agree with that, and what, as I 

say, what does concern me as well is that the whole warrant process to basically place a threat upon the Capitol Police, if they didn’t 

cooperate that all sorts of things were going to happen, strikes me 

as being a complete overreach. 

And so, as has been mentioned in the testimony here, what you 

have that is particularly disturbing is the executive and the judicial branches teaming to make a raid on the Congress with, as I 

said in my testimony, malice aforethought. 

Mr. CONYERS. Thank you, sir. 

The CHAIRMAN. The gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. Here is a quote. ‘‘I 

said to the President, if the equilibrium of the three great bodies, 

legislative, executive, and judiciary, could be preserved, if the legislature could be kept independent, I should never fear the result of 

such a Government, but that I could not but be uneasy when I saw 

the executive had swallowed up the legislative branch.’’

The President to whom that was spoken was named Washington 

and Thomas Jefferson is the one that said it. Apparently, this has 

been an ongoing struggle to keep this delicate balance of power 

going. 

Now, in looking at precedent, as I have heard some people on television react, who perhaps were in the boat that I was originally, 

as a judge, a State judge, trial judge and former chief justice of an 

intermediate State court of appeals, I have signed hundreds, I don’t 

know, thousands of warrants, reviewed lots of affidavits, gee, I’d 

never had an article I, section 6 question come up before. So I was 

unfamiliar with this, but began to do some digging. 

You may have heard other people say in the media that, gee, 

there is a precedent for this because the Department of Justice has 

gone in and searched a judge’s offices before. For whoever may 

wish to address that, could I get some comment on that being cited 

as a precedent? Mr. Fein? 

53

Mr. FEIN. Mr. Member, if you look at article III of the Constitution, which addresses judicial power, there isn’t anything comparable to the Speech or Debate Clause. We’re addressing an explicit recognition by the Founding Fathers that the legislative 

branch needed special protection. They had experience with the efforts of the British King and executive to attempt to intimidate 

Parliament through criminal prosecutions and investigations. So 

they made a special effort to strengthen Congress’ institutional capacity to check the executive or the judicial branches. They didn’t 

fear that the judges would be intimidated. There is no express 

guarantee of a speech or debate kind of privilege on that score. 

And it also seems to me that today, as opposed to at the founding, the danger of encroachment on speech or debate is far greater. 

At the outset, there were relatively few Federal crimes. We didn’t 

have an FBI, there wasn’t even a Department of Justice created to 

investigate until 1870. Today, there are so many crimes on the 

books, it’s as then Attorney General Robert Jackson said in 1940, 

the danger is the prosecutor at the executive branch looks at a legislator and then scours the books to pin an offense or investigation 

on him rather than finding a crime and then searching for the culprit. You know, you can get a prosecutor to indict a ham sandwich. 

Mr. GOHMERT. Have you been to Texas? 

Mr. FEIN. I think that’s a more universal attribute on the prosecutor. 

Mr. GOHMERT. Okay. I know it’s true in Texas. 

Mr. FEIN. But if you have an executive branch eager to use 

search warrants in any criminal investigation, it can be any Member of Congress. 

Mr. GOHMERT. So there is no real parallel between searching a 

judge’s office under the Constitution and searching a Member of 

Congress or the Senate’s office? 

Mr. FEIN. I don’t want to say there is no parallel, no indication 

that there isn’t some enclave of privilege there, but it’s not risen 

to the same constitutional dignity or importance as the Speech and 

Debate Clause. 

Mr. GOHMERT. Well, all of you mention the Speech and Debate 

Clause as being what is at issue here, and I have also heard people 

on television, so-called media experts, say, and they will put the 

language of the section 6 on the TV screen and say, see there, it’s 

talking about speech and debate, it’s not talking about documents; 

where do you get that? 

So if someone could address how in the world we get from speech 

and debate to documents, or hard drives. ’cause I’ve looked, hard 

drives is not mentioned in here. 

Mr. TURLEY. Well, you know, that’s an excellent question. First 

of all, there’s a lot of misinformation about reading that clause. If 

you look at the Federal Convention, there was very little discussion 

about the clause, in part because Members, I think, believed it was 

obvious that there had to be privileges for the legislature. 

Since 1541, the English Parliament had cited this privilege in 

their continual problems with the Stuart and Tudor monarchs. And 

so by the time the Constitutional Convention came around, it was 

already established that a legislature has a unique need for this 

type of privilege. 

54

And, by the way, there is this great irony in this Administration 

that there seems to be no limits as to claims of what executive 

privilege means; that executive privilege covers the Vice President, 

covers everything that comes within a mile of the White House. 

Executive privilege isn’t mentioned in the Constitution. It was 

created by the courts, and yet you have this robust interpretation. 

But the privilege that is mentioned apparently is too small to even 

slow an FBI raid on an office. 

Now, the one thing I want to emphasize is when the language 

therefore refers to speech or debate, the Supreme Court has been 

very, very clear that that goes beyond the literal meaning of those 

terms, and it is very broad if you take a look at some of the cases 

I cited in our papers. That at least is not, I assume, under debate. 

Chairman SENSENBRENNER. Before I forget it, without objection, 

the witnesses’ statements will appear in full in the record prior to 

their verbal testimony. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. Well, Mr. Turley, let’s kind of follow up 

on a that a little bit. The section 6, clause I says that ‘‘they shall 

in all cases, except for 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 and debate in any House they shall not 

be questioned in any other place.’’ Does that immunize Members of Congress from answering for 

the commission of a crime? 

Mr. TURLEY. No. And this is one of the great misrepresentations 

we have seen in commentary. Nobody I know is arguing that this 

clause immunizes Members because of their status as Members of 

this institution. 

Mr. SCOTT. Let me follow through on another question. In the 

execution of a search warrant, normally when you go to somebody’s 

house to execute a search warrant, they are there. 

Mr. TURLEY. Right. 

Mr. SCOTT. They can contest it. They can tell you that you’re at 

the wrong house. You have an opportunity to respond. 

Was any opportunity like that given in this case, to your knowledge? 

Mr. TURLEY. No. In fact, they were barred. You have both the 

Representative of the institution and the legal representation of the 

individual both being barred from being present for this very, very 

long search. 

Mr. SCOTT. Now, we’ve heard about the exemption for searching 

press offices, and we’ve heard references to searching judicial offices. Those are inferior courts. Would it be different if we were 

talking about searching, rummaging through files at the Supreme 

Court? 

Mr. TURLEY. Since they ultimately interpret the Constitution, I 

expect they would find a robust privilege somewhere. But we have 

seen the courts create significant protections for their own branch 

and for the executive branch. 

In my view, the Supreme Court has too narrowly interpreted the 

Speech or Debate Clause. I think if you look back at the statements 

of Jefferson and Madison, after the sedition prosecutions by John 

55

Adams, you will see very clear statements that they viewed speech 

or debate goes to an even broader range than the current doctrine 

would allow. 

But all of that is for an academic debate. The material in this 

case is, without question, legislative material covered by the clause. 

I can’t imagine anybody would suggest a Member’s hard drive 

would not fit in there. And it’s true it’s not mentioned, but the best 

thing to remember is that everything that used to be in paper form, 

when Jefferson and Madison were criticizing Adams, all of that 

paper today would be found on a hard drive. So it is the equivalent 

of doing a sweep through a Member’s office back then and taking 

every single piece of paper in the office. 

Mr. SCOTT. Well, in terms of setting up a procedure, similar to 

the exemptions in the press situation, we’ve heard a suggestion 

that the Speaker of the House be notified. 

You’ll have to excuse me that this Democrat isn’t particularly impressed with the Republican President notifying the Republican 

Speaker of the House that he’s about to raid a Democratic office 

as a protection. 

Do we have any idea of who decides what gets looked at and does 

the fact that a Member cooperates or is not cooperating? Is that 

relevant to the discussion? 

Mr. TIEFER. If I may, Mr. Scott, I have some familiarity with the 

procedures. I actually want to mention something that both I—— Mr. SCOTT. Let me ask another question, then everybody can 

kind of comment on it. 

And would it make a difference if you had a reliable informant 

tell you where the drugs were or where the money is, you went in, 

got that, and got out? Would that make a difference in all this? 

Mr. TIEFER. That is too colorful for me. Let me go back to the 

drier procedural question you asked earlier, and I’ll leave——

Both I and Professor Turley cited the fact that the U.S. Attorney’s manual itself, the internal Justice Department manual, it’s 

posted on the web, but the manual by which they tell themselves 

what procedures they’re supposed to follow in the Justice Department and the FBI has an entire section, section 2046, about when 

they come to Congress for evidence. And it specifically says: ‘‘the 

customary practice when seeking information from the legislative 

branch, which is not voluntary forthcoming from a Senator or 

Member, is to route the request to the Clerk of the House or the 

Secretary of the Senate.’’ That’s the way. Now, when they say the Clerk of the House, the 

Clerk of the House is a surrogate. The Clerk of the House and the 

General Counsel of the House report to the Speaker and bipartisan 

leadership group. That’s the roles that the minority and majority 

have worked out within that framework. It may be satisfactory 

sometimes, it may not be other times, but it starts as a potentially 

bipartisan framework and it is not something political. 

This is in the U.S. Attorney’s manual. This isn’t a political guide 

to how political things are done. This is a legal guide to how prosecutorial and investigative things are to be done, because of the 

way papers within the Congress are deemed to be available. 

So was there a proper way to seek these papers? There was. Does 

asking the Speaker in advance have a role? It does. Following the 

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U.S. Attorney’s manual, one consults with the Chamber so that the 

processes will be proper. Does that stop the evidence from being 

sought? Absolutely not. It just makes it be done right. 

Chairman SENSENBRENNER. The gentleman from California——

Mr. SCOTT. Mr. Chairman, may Mr. Fein answer the follow-up 

question? 

Chairman SENSENBRENNER. Mr. Fein. 

Mr. FEIN. Yes. With regard to searching for cash or instrumentalities of crime, there isn’t a Speech or Debate Clause problem. 

There are elements of comity, but you’re not getting into elements 

of deliberations if you are searching for cash. You don’t have to 

read the documents. It’s the requirement that you read every document and file in the office to know whether or not you’re identifying something that responds to the warrant that is the intrusion 

on the Speech or Debate Clause. 

I want to give a clear example. Suppose we go back to the impeachment proceedings with regard to President Clinton, and in 

the files of Members on the Judiciary Committee could be evidence 

or questions they are going to ask witnesses. You would not want 

to have the FBI of the Clinton administration coming into that 

Member’s office and saying, gee, we think there may be an election 

law violation, we’ve got to read through every single document in 

your file, including the questions you may be asking during the impeachment inquiry, in order to determine whether we need to continue this particular proceeding. 

That is clearly an invasion of Speech or Debate Clause evidence, 

which would then be in the executive branch’s ability to know how 

to evade or rebut the impeachment prosecution. That is what I 

think Professor Turley meant in explaining that the Speech or Debate Clause includes more than just what you say on the floor of 

Congress. It relates to those communications that are indispensable to discharging your functions as a legislator. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. Fein, you have prepared everything for my few questions. 

You know, it’s interesting to me that it’s alleged that J. Edgar Hoover wiretapped or bugged Goldwater’s aircraft on the request of 

Lyndon Johnson because there was no law preventing it at the 

time. And so he did what the President ordered him to do. 

Constitutional challenge? Not in the strict sense. Chilling effect 

on the ability for an incumbent to ever not win reelection? Yeah, 

I’d say it was. And this body passed laws that make that a crime 

today, a crime affecting the President. 

It’s an interesting question, though, about laws, and I’m going to 

ask it as someone who came to this legislative body not to pass 

laws unless absolutely necessary. Do you really pass laws to protect 

the strict letter of the Constitution? 

We have, and I hope this is appropriately controversial, we have 

the power to impeach the Attorney General. We have the power to 

impeach that particular judge who decided that our body, particularly even our own very small police force, had no powers to stop 

the other two branches. 

57

Now, I’m not sure that Articles of Impeachment are going to 

come out today. I think we’re a couple shakes short of a quorum 

for that purpose, although I suspect Members would quickly be 

here if it was brought by the Chair. 

Chairman SENSENBRENNER. If the gentleman will yield. Not yet. 

Mr. ISSA. Thank you, Mr. Chairman, happy to have yielded. 

Reclaiming my time, my question to all of you, because we are 

here talking about something that we’re not doing on behalf, as Mr. 

Scott might have said, we’re not doing this as a Republican Congress on behalf of a Democrat, we’re doing this out of the deep concern that this time it was about criminal behavior, this time this 

Member of Congress, Congressman Jefferson, was not investigating 

the President, seeking impeachment, so it seems like there was no 

attempt overtly to reduce the speech and debate or to in some way 

attack this body, although they accomplished it. 

But my question, unless we get a second round perhaps my only 

question to you is, do we really need a law or should we in fact 

use the powers we have as a separate co-equal body to provide the 

appropriate checks and balances of those who have abused clear 

constitutional guidelines? 

And I will start with Congressman Walker because I admired his 

work while he was here. 

Mr. WALKER. Thank you, Mr. Issa.

You will notice that in my testimony I did not specifically call for 

a law, and I did that consciously. Because as I considered this, I 

thought to myself, I’m not certain but what a law does not diminish 

the constitutional authority; that as soon as you place a law of procedures, that that may have a diminishing effect on the very nature of the Constitution. 

I’m not an attorney, but I reacted to it as a politician, just saying, I’m not certain that that’s the route to go in this particular 

case. And what I’m concerned about is that we would tend to have 

a law that reacts to this particular situation, and yet the precedent 

being set here may have vastly more extensive implications to it. 

For example, at the Justice Department right now it appears as 

though they are headed toward trying to create a new circumstance 

where campaign contributions can be regarded as bribes of Members of Congress. Will we then have a wave of raids on Capitol Hill 

to look at Members’ records to find out whether or not they have 

taken campaign contributions that relate to their legislative duties? 

If this precedent is allowed to stand, it seems to me that that’s a 

danger going forward. 

Again, I say that not as a lawyer, which I’m not, but as a politician who just kind of reads the tea leaves and says these are concerns that I think Congress ought to be very aware of. 

Mr. ISSA. I want to give everyone else a chance to answer, but 

I will interject that perhaps they’ve listened to special orders late 

in the night in this body talking about the President’s taking of 

money from various oil companies and the assertion that somehow 

because they had a campaign contribution it was the equivalent of 

a bribe. Perhaps we gave the Attorney General’s office exactly that 

wrong-minded idea. 

Professor Turley. 

58

Mr. TURLEY. First of all, I want to say that what Congressman 

Walker just said is absolutely true; that we have to be careful that 

we don’t affirm a view that there’s not a preexisting duty. But, in 

fact, there are other statutes that amplify and create procedures 

for existing constitutional rights. 

What I would encourage you to do is not just pass this law but 

to make it clear that you are not conceding this point; that in fact 

you believe you have the inherent authority; but this, like those 

other laws, is designed to create procedures and to amplify the existing constitutional right. And I think in that sense you are right. 

But I also want to encourage you that the Framers gave you the 

ability of self-defense. You have appropriations authority, oversight 

authority, and you have ultimately the impeachment authority. 

And I don’t consider that to be such a trivial question. I think that 

when you have an offense that strikes at the separation of powers, 

you are talking about something that threatens the very stability 

of the system. You have those powers, and I hope that you will use 

them. Because the Framers expected that you would jealously protect your own authority. Because I promise you, the other branches 

are not likely to do so with as equal vigor. 

Mr. FEIN. With regard to a statutory approach, I think the necessary and proper clause, article I, section 8, clause 18, was calculated to accomplish precisely what a statute would do. That empowers Congress to enact any law that’s appropriate for the execution of any power belonging to any branch of Government, executive, legislative, or otherwise. 

An example in my judgment of the use of the necessary and 

proper clause was the passage of the Foreign Intelligence Surveillance Act, which has been so much discussed. That is, whether or 

not the President might have inherent authority to gather foreign 

intelligence wherever he wanted if Congress said nothing; that 

Congress, after holding exhaustive hearings, said we want to regulate the gathering so it doesn’t encroach on fourth amendment 

rights. The same thing would be true by this statute. 

And I think that’s superior than a case-by-case approach under 

the Constitution that will take years and years of litigation, up to 

the Supreme Court and back again, before there is anything that 

even closely resembles the clarity of a statute. It’s best to decide 

now. 

With regard to the alternate mechanisms that Congress holds to 

hold the executive branch accountable, they are there, as Professor 

Turley announced. But the greater the flexibility, the more likely 

sensible uses will be made. An impeachment proceeding really is 

totally disproportionate to an issue of this sort unless it remains 

systematic. A statute seems to me the first place that something 

ought to be tried before you resort to more drastic remedies. 

Chairman SENSENBRENNER. The gentleman from Maryland, Mr. 

Van Hollen. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman, and thank all of 

you for your testimony. And, Mr. Chairman, I was pleased to hear 

you say you are also intending to call the Attorney General as well 

as Mr. Mueller because I’m interested in what they have to say. 

And I also think at these hearings it’s important to have both sides 

represented as much as possible. I hope even the next panel you 

59

mentioned we will have both views. Far be it from me to defend 

the executive branch, but I just think in terms of getting all the 

facts out and a full range of views, that would be helpful to everybody. 

Professor Turley, you mentioned it is a catharsis, but I do think 

it’s important to very briefly list on page five of your testimony the 

number of examples of overreaching by the executive branch where 

there’s been a total lack of oversight by this Congress: The torture 

memorandum, detainees, enemy combatants, signing statements, 

domestic surveillance, data mining operations. 

All important issues. And Members of this Committee may come 

down on different sides of those issues, but we should still have the 

oversight and the hearings so we can get the facts out and let people make a reasoned judgment about what the Administration is 

doing. 

So, again, I’m pleased that we’re having oversight on this issue, 

but I think there are so many other issues important to the American people that demand greater oversight. 

Now, if I could ask you, Mr. Fein, with respect to the idea of having a statute to address this issue. A statute passed by the Congress, of course, is subject to a veto by the President. And it does 

raise the question that Mr. Walker raised, and I was thinking myself, doesn’t this in some way, couldn’t this be interpreted in some 

way as an admission that the Congress does not have the constitutional authorities that you talked about? 

And what would happen if the President vetoed it and Congress 

then failed to override the veto for some reason? Would that not 

be interpreted as a sort of surrender of some of our claimed constitutional authorities? 

Mr. FEIN. I don’t think so. I think Congress can make clear that 

they are enacting the statute out of an excess of caution to avoid 

the delays involved in litigating with regard to the constitutional 

standard, and making clear that you’re not yielding any argument 

that the Speech or Debate Clause on its own wouldn’t have invalidated the warrant that was signed by Judge Hogan. 

With regard to an executive branch veto, I suppose that’s possible, but that’s part of the legislative process. At least the President, then, would be open and clear to the American people as to 

what kind of authority he wanted to grant his executive branch 

and could be held accountable accordingly. 

It seems to me, however, that the bipartisan support for this 

hearing suggests that a veto would be very unlikely, especially 

since the Vice President, Mr. Cheney, has voiced some objection or 

qualms about what was done here, and he seems to have substantial influence in the White House. 

Mr. VAN HOLLEN. All right. Now, as I understand the testimony 

of Professor Turley, and I don’t know if you share the view, but the 

actual search warrant itself was deemed to be—you judged that to 

be constitutional. The question has been the means and the scope 

of the documents looked at. 

I’m interested whether you all share that view, but with respect 

to the proposals, I understand you would prohibit search warrants 

for documents in legislative offices, period? 

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Mr. FEIN. Yes. And that’s why I think a search warrant for documents, on its face, is unconstitutional. Because you have to read all 

the files to know whether you have hit upon the document responsive to the warrant. 

Mr. VAN HOLLEN. Well, let me ask you this hypothetical, though, 

because there are many forms of documents. What if you had a 

search warrant that specified specific documents that the FBI, or 

whoever it was, had good reason to believe were in a congressional 

office. And let’s further presume that maybe it’s one or two documents and they also believe there was a fear that if they announced in advance that that document would be missing. 

Let me give you a hypothetical. In the Congressman Duke 

Cunningham case, there was apparently a napkin or a piece of 

paper that specified specific earmarks, and next to each earmark 

specified the amount of bribe that would be given in exchange. 

Let’s say they believed that that document was in Congressman 

Cunningham’s office and that they believed there was a real danger that if they provided advance notice that it would disappear, 

and you went to a Federal judge. 

Under your statute, that would be prohibited even if you were 

looking for one document. Is that your intent? Under that circumstance, should we allow, under that kind of circumstance, 

should we allow for a search warrant of a congressional office? 

Mr. FEIN. If you’re talking about something that can be described 

in a way that enables it to be searched without reading all the 

files, then there is not a problem. But ordinarily a Member isn’t 

going to put a special file and say this particular paper relates to 

the bribe or the money I’ve received. And the only way that you 

can determine whether or not a document is responsive to the warrant is reading a lot of files that aren’t responsive because you 

don’t know which one you’ve come upon or whether you’ve exhausted the total number. 

That’s the difficulty. If you are talking about some mosaic or cuneiform which isn’t in the file, then you don’t have that problem 

because you don’t need to read all those documents to know whether you’re looking at cuneiform. That’s why I think the hypothetical 

you’ve raised really is not going to raise a problem if it’s written 

on a napkin that isn’t mixed in files which couldn’t be readily separated. 

Mr. VAN HOLLEN. Well, it could be on a separate piece of paper 

that looked like everything else. 

Chairman SENSENBRENNER. Professor Turley. 

Mr. TURLEY. Yes, I never disagree with Bruce, because I usually 

find out later I’m wrong, but I’ll disagree just slightly here, and I’m 

not sure it is a disagreement. 

But I believe that a search would still be inappropriate the way 

it was conducted here, even if you know that there is physical evidence in an office. And I think that Professor Tiefer actually has 

addressed this as well. 

There is a way you can do it, and how we do things in our system means a lot. So even if you have the napkin with the bribe list 

on it, what they should do then is to go to the House of Representatives and secure the material so there is no danger it will be lost 

and then work through the legislative branch to get it. That’s how 

61

it’s been done throughout our history. There’s never been a problem 

that preexisted. So how we do it. 

And when you mentioned my position as to the warrant, my 

point is that there was clearly probable cause here. That is not an 

issue. Finding 90 grand in a freezer gives you a pretty good basis 

for probable cause. And once you do that, most offices and dwellings and places that you frequent fall within that gambit. So probable cause is not a question. Their interest in the material is not 

a question. Even if it’s redundant, according to his defense attorneys, they believed that in fact the Government already had much 

of this material. But even if it’s redundant, they still have an interest in getting it. It’s a question of means. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

For what purpose does the gentleman from Texas seek recognition? 

Mr. GOHMERT. Mr. Chairman, I ask unanimous consent to just 

make a comment about the warrant that I think has been wholly 

missed here. 

Chairman SENSENBRENNER. Without objection. 

Mr. GOHMERT. You guys are great, and I appreciate your intellect, as well as all the experts out there in the media, but it seems 

that everyone has presumed that this warrant had some protections built into it. But I would humbly submit to you this warrant 

has absolutely no protections built into it. It is a form warrant, and 

the only addition is the judge wrote in: ‘‘the U.S. Capitol Police are 

directed’’ I guess that’s the proper verb, but ‘‘Police are directed to 

provide access to the property.’’

But it’s a form warrant. Over here in the affidavit it says ‘‘I have 

been informed by the prosecutor overseeing the investigation in 

this matter′′—obviously hearsay—′′that they have decided to adopt 

special procedures.’’ but when I have had a warrant as a judge that 

required special procedures, normally I set them out. This judge 

just simply says ‘‘you are commanded to search for the person or 

property specified.’’

There are no safeguards in this warrant. He says go have at it, 

without any assurance that any privilege will be afforded anything. 

Thank you. 

Chairman SENSENBRENNER. Thank you very much. I’d like to 

thank all of the witnesses for their very relevant testimony. This 

is a constitutional issue that is a matter of great concern, and the 

separation of powers and the checks and balances were put into 

our Constitution by the framers to make sure that no person or no 

branch of Government got too powerful. And it was a direct reaction against the notion of parliamentary supremacy where all three 

functions of Government were combined in the British Parliament, 

which exists to this day. 

When I have talked to students about the Constitution, I have 

said that the Constitution was a reaction against the excesses of 

the British Parliament. They did not want to have the executive, 

legislative, and judicial functions being put in the same institution 

as they are in the United Kingdom. That is why we have three 

branches. It is also why there were the checks and balances put in, 

to make sure that the excesses of one branch could be checked by 

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the other two, or the excesses of two branches could be checked by 

the third. 

It’s worked for 219 years. There’s no reason to ignore the 219 

years of success of separation of powers and checks and balances, 

and that’s why we’re here today. And I thank all four of you for 

shedding light on why we have the separation of powers and the 

dangers that were employed a couple of weeks ago. 

I’d also like to thank the Members who have participated in this 

hearing for taking some of their recess time to basically come out 

here to defend the Constitution. 

So having said that, without objection, the hearing is adjourned. 

[Whereupon, at 11:02 a.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO POST-HEARING QUESTIONS FROM THE HONORABLE ROBERT S. WALKER, 

CHAIRMAN, WEXLER & WALKER, AND FORMER MEMBER OF CONGRESS FROM THE

STATE OF PENNSYLVANIA


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RESPONSE TO POST-HEARING QUESTIONS FROM JONATHAN TURLEY, J.B. & MAURICE

C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL


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RESPONSE TO POST-HEARING QUESTIONS FROM BRUCE FEIN, PRINCIPAL,

THE LICHFIELD GROUP, INC.


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100


SDoc0019.eps
101


SDoc0020.eps
102


SDoc0021.eps
103


SDoc0022.eps
104


SDoc0023.eps
105

‘‘MOTION FOR RETURN OF PROPERTY AND EMERGENCY MOTION FOR INTERIM RELIEF’’


RDoc0001.eps
106


RDoc0002.eps
107


RDoc0003.eps
108

Æ


RDoc0004.eps