## Facts

- The FBI executed a search warrant in May 2006 on the congressional office of Representative William J. Jefferson (Room 2113, Rayburn House Office Building) during a public-corruption investigation.
- The warrant sought evidence of bribery-related crimes; it purported to exclude “legislative materials” and required a DOJ “filter team” to separate potentially privileged materials from items available to investigators and prosecutors.
- Agents seized paper files and imaged electronic media, including computer hard drives, creating mirror images for later sorting and keyword searches.
- Jefferson moved under Federal Rule of Criminal Procedure 41(g) for return of the seized materials, alleging the search and seizure violated the Speech or Debate Clause.
- The district court denied relief, accepting that the warrant and filter procedures adequately prevented disclosure of legislative materials to the Executive Branch and grand jury.
- On appeal, the court implemented interim procedures allowing Jefferson to review copies, assert Speech or Debate privilege as to legislative materials, and submit disputes for judicial resolution; DOJ froze its review pending the privilege process.
- Jefferson was later indicted on multiple offenses based on evidence asserted to be independent of the office search.

## Issues

1. Whether the Speech or Debate Clause includes a non-disclosure component that bars the Executive Branch from reviewing or being exposed to legislative materials during execution of a search warrant.
2. Whether on-site review of paper files by Executive agents in a Member’s office violates that protection even if the warrant targets non-legislative evidence and a filter team screens materials.
3. Whether imaging and planned keyword searching of electronic data violates the Clause when protective procedures prevent Executive review of legislative material.
4. What remedy is required for any Speech or Debate Clause violation (return of privileged materials, suppression/return of all materials, or other limited relief).

## Decision

- The D.C. Circuit reversed in part and remanded.
- The court held that the search violated the Speech or Debate Clause to the extent Executive agents reviewed and seized materials containing legislative content, because the Clause protects against compelled disclosure of legislative materials to the Executive.
- The court held there was no Speech or Debate Clause violation from imaging and keyword-search preparation for electronic data under the interim safeguards, because the Executive had not reviewed legislative content from the images.
- The court ordered return of materials determined to be privileged legislative materials and barred the Executive from reviewing them, while allowing retention and use of non-privileged, non-legislative evidence.
- A concurring judge agreed with the judgment but would not have found the search itself unconstitutional, viewing the Clause as primarily limiting evidentiary use rather than mere exposure.

## Legal Principles

- The Speech or Debate Clause’s protection extends beyond courtroom testimony to a non-disclosure privilege that bars compelled disclosure of documents and other materials reflecting legislative acts.
- Constitutional injury may occur upon Executive exposure to privileged legislative material, not only upon later evidentiary use.
- Executive-branch “filter” or “taint team” screening is insufficient where it requires Executive personnel to conduct the initial review of potentially privileged legislative materials.
- Members of Congress are not immune from criminal investigation or process; however, investigative methods must prevent Executive review of privileged legislative materials and provide the Member a prior opportunity to assert the privilege, subject to judicial resolution.
- Remedies should be tailored: return and protection of privileged legislative materials, without automatically requiring return or suppression of non-privileged, non-legislative evidence.

## Conclusion

The D.C. Circuit held that, while Members of Congress may be investigated and searched under criminal process, the Speech or Debate Clause forbids Executive review of privileged legislative materials; the court required return and segregation of such materials and rejected reliance on Executive-controlled screening as a substitute for prior privilege assertion and judicial oversight.


United States v. Rayburn House Office Bldg., Room 2113, Wash., D.C. 20515, 497 F.3d 654 (D.C. Cir. 2007)