[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
 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


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel


                            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


 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 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 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.
    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.
    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 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.
    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 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:]

             Prepared Statement of Professor Charles Tiefer



    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 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 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 decision-making 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 non-cooperation 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 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.
    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 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:]

                 Prepared Statement of Jonathan Turley




    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 enacted 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 Japanese-Americans 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 self-protection 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.
    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 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 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 in-camera judicial review of a 
warrant to determine whether or not they were protecting 
materials.
    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.
    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?
    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.
    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 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 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.
    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.
    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 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?
    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 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 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.]

                            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




Response to Post-Hearing questions from Jonathan Turley, J.B. & Maurice 
  C. Shapiro Professor of Public Interest Law, The George Washington 
                         University Law School



    Response to Post-Hearing questions from Bruce Fein, Principal, 
                       The Lichfield Group, Inc.



       ``Memorandum in Support of Motion for Return of Property''



   ``Motion for Return of Property and Emergency Motion for Interim 
                                Relief''



                                 
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