Without comment, the justices let stand a ruling by a federal appeals court that the Constitution provides members of Congress with a “nondisclosure privilege” that was violated by the search of Representative William J. Jefferson’s Congressional office.
The appeals court ordered the government not to review any material related to Mr. Jefferson’s Congressional work that was seized during the 18-hour search before returning it. His lawyers contend that this order covers about half the material, or some 18,000 pages.
The late-night execution of a search warrant on May 20, 2006, by a team of F.B.I. agents was the first time that agents of the executive branch had searched a Congressional office.
Mr. Jefferson, a Democrat, is awaiting trial on 16 counts of soliciting bribes, obstructing justice, money laundering and other offenses. A search of his home, conducted before the search of his office in the Rayburn House Office Building, found $90,000 in cash in the freezer. His trial was scheduled to start in February, but it has been delayed indefinitely because of pretrial defense motions. The government told the Supreme Court that it was ready to proceed without the evidence from the office search.
Nonetheless, in its appeal to the Supreme Court, the administration warned that the appeals court’s interpretation of the Constitution’s “speech or debate” clause was so broad as to turn any Congressional office into “a sanctuary for crime.”
The speech or debate clause provides that “for any speech or debate in either House,” a member of Congress “shall not be questioned in any other place.” The clause, the administration argued, “does not protect against the disclosure of information through a criminal search warrant,” but rather it exists to protect members of Congress from reprisal for their public acts, like votes or floor statements.
“Investigations of corruption in the nation’s capital and elsewhere will be seriously and perhaps even fatally stymied” by the broad interpretation of the clause applied by the United States Court of Appeals for the District of Columbia Circuit, the administration said in its appeal, adding: “Only this court can resolve this important question.”
That urgent assertion might have been undermined, however, by the testimony of Attorney General Michael B. Mukasey before the House Judiciary Committee on Feb. 7. Answering questions about the Jefferson search from Representative Howard L. Berman, a California Democrat, Mr. Mukasey referred to “ongoing discussions” between the executive branch and Congress over how to avoid problems in the future.
“We would much prefer to resolve that case in the way that most disputes with respect to privilege and other matters are resolved between Congress and the Justice Department,” Mr. Mukasey said. “Namely, by conversation and accommodation.”
This colloquy was brought to the Supreme Court’s attention in a brief filed by several former House staff members, who urged the court to deny the government’s appeal on the ground that “review would be premature as the political branches are in the process of addressing the very issue raised by the petition.”
Mr. Jefferson’s lawyer, Robert P. Trout, said in a statement that the defense team was “convinced that the Department of Justice was out of bounds” in conducting the search. He added: “Now, almost two years later, we are gratified that our initial judgment about this unprecedented raid has finally been confirmed.”
The case was United States v. Rayburn House Office Building Room 2113, No. 07-816.
In other action Monday, the justices agreed to hear a Utah city’s appeal in a free speech case that could reopen the dispute over the display of the Ten Commandments in public places.
In 2003, a religious group called Summum, whose worship practices include those of ancient Egypt, demanded the right to erect a monument displaying what it calls its “seven aphorisms” in Pioneer Park in the city of Pleasant Grove. The park has a Ten Commandments monument that was donated to the city in 1971 by the Fraternal Order of Eagles. Summum said its monument would be “similar in size and nature.”
The city refused, then adopted a policy for displaying privately donated monuments that excluded Summum’s proposal. Summum sued on the ground that its exclusion from a public forum violated its rights under the First Amendment. After losing in Federal District Court in Salt Lake City, Summum won an order from the United States Court of Appeals for the 10th Circuit, in Denver, permitting it to erect its monument while the case went forward.
The outcome of the Supreme Court appeal, Pleasant Grove v. Summum, No. 07-665, may turn on how the justices characterize the city park and the displays it contains. The city maintains that the park is not a forum for public expression because it has adopted the monuments and their message as its own, as “government speech” that does not entitle other speakers to equal access.
The nature of expression in public places is a complex and unstable area of First Amendment law, making it quite likely that this case, to be argued in November, will be one of the most closely watched of the court’s next term.