There’s no doubt it would have been better politics if the Justice Department had given the House leadership a heads-up about the search of Jefferson’s office. But in the department’s 95-page search warrant request, investigators do address a number of issues that House Republicans have raised. Unfortunately, some of that material is blacked out. For example, the court-approved warrant request includes a section headlined GOVERNMENT EFFORTS TO EXHAUST ALL LESSER INTRUSIVE APPROACHES TO OBTAINING RELEVANT DOCUMENTS AND RECORDS LOCATED IN THE WASHINGTON, D.C. CONGRESSIONAL OFFICE OF WILLIAM J. JEFFERSON, followed by several redacted paragraphs in which the Justice Department presumably details those efforts. Then, at the end of the warrant, there is an eight-page list specifying each item to be taken from Jefferson’s office. That list, too, is redacted.

Then the warrant describes a set of procedures for dealing with the documents while taking into account Congressional privileges:

To ensure the prosecution team does not inadvertently review any potentially politically sensitive, non-responsive items in the office, or information that may fall within the purview of the Speech or Debate Clause privilege, or any other pertinent privilege, the physical search of the office will be conducted by special agents from the Federal Bureau of Investigation who have had no substantive role in the investigation.
The non-case agents will remove from the office those paper records determined to be responsive [to a detailed list of things to be search for included at the end of the warrant request]…Other than as required to determine responsiveness, the non-case agents will not disclose to anyone any politically sensitive and non-responsive items inadvertently seen by the non-case agents during the course of the search of the office and will attest in writing to their compliance with this procedure.
Before giving any paper records seized from the office to the prosecution team, the non-case agents will deliver the seized paper records to the designated Filter Team….Prior to their appointment, the Filter Team will have had no role or connection to the investigation in this matter and their subsequent roles in the investigation will be confined to their duties and responsibilities in connection with these special procedures.
The Filter Team will review the paper records seized from the office to validate that they are responsive…Any paper records seized from the office that are determined by the Filter Team to be unresponsive…will be promptly returned to the office…
Paper records validated by the Filter Team as responsive…will undergo a second level of review by the Filter Team. The Filter Team will review the responsive records to determine if they may fall within the purview of the Speech or Debate Clause privilege…or any other pertinent privilege…
For those paper records determined by the Filter Team as potentially within the purview of the Speech or Debate Clause privilege, or any other pertinent privilege, the Filter Team shall provide a log of those potentially privileged paper records to counsel for Congressman Jefferson. The log shall identify the record by date, recipient, sender and subject matter….The Filter Team shall not provide the log or copies of the potentially privileged paper records to the prosecution team, unless otherwise ordered by the Court…
The Filter Team shall then request the District Court to review the potentially privileged paper records in order for the Court to name a final determination whether they contain privileged information, unless counsel for Congressman Jefferson consents to the production to the prosecution team of certain of the potentially privileged paper records.

A similar procedure was laid out for electronic records. Clearly the Justice Department thinks it is on solid legal ground in this case. And Article 1, Section 6 of the Constitution specifically exempts cases of “treason, felony and breach of the peace” from the otherwise blanket protection given to senators and representatives in the course of their duties. Is there some circumstance that protects Jefferson in this case?

Finally, this whole thing started when Jefferson, knowing that the FBI had deeply incriminating evidence in its bribery investigation, simply refused a subpoena for evidence from his office. A standoff had gone on for nine months, and there was no indication that Jefferson would ever cooperate. So the Justice Department took action. Should they have told some House leaders ahead of time? Maybe so. That would have been good politics. But beyond that, Hastert doesn’t have a very strong case to make.