Friday, May 26, 2006

Possible Retraction

Tommy has had some questions I raised about the FBI raid on William Jefferson's office (Link). I offered my response as this:

Thus, therefore, and therehua, the correct way for this to have been done would be for the DOJ to issue a subpoena for any papers related to bribery investigation. A team of lawyers would be brought into the office and would search through the entire collection of papers. Anything that was not relevant is excluded. Anything where the privilege of office attaches, it is put on a "privilege list." Anything relevant is turned over. If the DOJ has issues with anything of the privilege list, the DOJ goes in front of a judge and argues why it would be turned over to the DOJ. If the judge agrees, it will be turned over. If the judge does not agree, it remains privileged.

I have come to learn that the DOJ did in fact issue a subpoena and Jefferson refused to comply with it. While the second part of my response remains the same, Jefferson does have an obligation to respond to a subpoena in a legal manner. A flat out refusal to comply is wrong. I don't know all of what has gone on, but Jefferson should have had the papers where he is applying privilege to put on a privilege list. If the DOJ still wants to see them, they go in front of a judge and ask for a motion to compel. If Jefferson does not comply with that motion, then the FBI has more grounds for raiding his office. This is how it is done for the Oval Office. This is also how it shoudl be done for a Congressional office.

So, at this point, both the FBI and Jefferson appear to be in the wrong legally on this matter. The documents should be returned to Jefferson and then the DOJ should seek their disclosure in a lawful manner.


tommy said...

I don't see where anything is different just because it's congress or a congressional office. Once you're past the voting/speeches thing it's not any different than if it were anyone of the rest of us.

Hastert's argument that it's never been done before so it's wrong is just stupid.

Unless DOJ took something not specified in the warrant/subpoena there isn't anything here, and I've heard nothing credible that they have as of yet.

Dingo said...

In this situation, where you are dealing with privileged information, it should not be the DOJ picking through the documents to determine what is and what is not covered under the subpoena. It should have been the Sergeant at arms or Congressional attorneys. Much of what the DOJ went through is probably covered under the speech and debate clause. The DOJ cannot raid the oval office in the middle of the night either, nor should they be able to even though there are many of us who would love for them to be able to do it.

But as I said before, if Jefferson flat out ignored the subpoena, the DOJ has a stronger case. But should have got a motion to compel first.

It looks as though the guy is guilty as sin. They probably did not need to do this to make the case against him and may have hurt their case by doing this because a judge may latter find the warrant to be invalid thus excluding any evidence they collected from his office and therefore invalidating any leads into the investigation that come about due to the search (fruit of a poisonous tree).