Reviewing the Raid

There are few privileges as absolute as the right of Congress to remain free from the reach of the executive branch.

That, in essence, is what Robert Trout argued at the U.S. Court of Appeals for the D.C. Circuit today urging the three-judge panel to declare a 2006 FBI raid on the congressional office of Rep. William Jefferson (D-La.) unconstitutional.

"Don't look at the degree of interference. Don't look at whether it took 10 minutes or 10 seconds," Trout said. "If it is legislative in nature, it is absolute."

Instead, Trout suggested, Jefferson should have had a right to look through his office for documents needed to be turned over before anything was handed over to the government review team. 

But, noted Chief Judge Douglas Ginsburg, that method created logistical problems of its own. How long would Jefferson have? What would happen to his office in the meantime? And how could the government be assured that Jefferson (who stuffed $90,000 in cash in his freezer) would not conceal evidence from investigators?

"The court should be reluctant to embrace an interpretation that is impractical," Ginsburg said.

Not only that, deputy solicitor general Michael Dreeben argued, but there would be no need for special review procedures because the raid did not violate the separation of powers between Congress and the executive branch. The separation "should not extend this far," he told the court.

But, Judge Judith Rogers noted, "the question is is not that the office can't be searched but the manner in which it can be done."