Free Discretion by Allison Leotta

or more computers in the Congressman’s offices. The government also seeks documents relating to the agency forwhich the victim worked and any prior instances in which she interacted with the Congressman or his staff.”
    The judge nodded impatiently. “I’ve read the papers, Counselor. Despite the defense’s efforts, I agree that there is probable cause. But the issue is the extent to which the Speech or Debate Clause of the Constitution protects the Congressman’s office from being searched. What of that?”
    “The Speech or Debate Clause is meant to protect legislators from Executive-Branch interference into their decision-making,” Anna said. “But the Clause covers only legitimate legislative activity. Assaulting a visitor to the Capitol is not a legislative act.”
    “Not yet,” the judge said.
    “The government seeks three types of evidence. First, basic forensics: processing the hideaway for things like blood, semen, and fingerprints—”
    “Mr. Davenport?” the judge interrupted.
    Davenport stood up. “If police officers are allowed to search the Congressman’s office, they might find papers and notes relating to his decision-making. Obviously, forensics need to be done. But the Jefferson case ruled that the legislator should be afforded the first chance to go through his office, to minimize Executive intrusion into the Legislative process. Congressman Lionel is willing to retain private forensics investigators who can conduct the search and report their results to the police. Then there will be no interference with his decision-making process.”
    “The Founding Fathers didn’t intend for a suspect in a murder case to dust for his own prints at the scene,” Anna said. “That’s our job. The Jefferson case didn’t consider a circumstance where the office itself is the scene of a violent crime. Blood, semen, or DNA is not going to reveal secrets of the legislative process.”
    “I agree,” the judge said. “The Metropolitan Police Department may go into the Congressman’s hideaway and process it just as they would any crime scene. But the officers are not to read or seize any papers.”
    Anna could hear the reporters scribbling in their notebooks. It wasn’t lost on them that she had publicly implied that CongressmanLionel was a murder suspect. But there was no avoiding it—she needed the judge to understand why the search was so important.
    Anna turned back to the judge. “The second category of items is the Congressman’s computer records. The FBI can mirror—that is, copy—the hard drive on the computers in the Congressman’s offices. We don’t have to take the computers themselves. Then we can run specific word searches on the computers, such as the victim’s name. We’ll only look at the documents that match, minimizing the legislative materials that will be viewed. The Court of Appeals approved this approach in the Jefferson case.”
    Davenport objected, but he didn’t have the law on his side. The judge ruled in favor of the prosecutors. “The government has acted in good faith thus far, and I trust they will continue to do so.” No legislative material would be revealed by a search for the term “Caroline McBride.” For other search terms, like “Discretion,” resulting documents would be reviewed by the court before the prosecutors got them.
    “The third category are the papers in Congressman Lionel’s hideaway,” Anna said. “And the issue really boils down to who gets to conduct the search first: the Congressman or the police? Despite what the court said in Jefferson, we think the process set out in our memorandum is reasonable.” She knew this was a long shot. The case law was distinguishable, but it wasn’t in her favor.
    Davenport stood again. “The law on this is very clear. We get to review anything that law enforcement wants to search, first. Your Honor can double-check the items we say are legislative, but the prosecution simply cannot search them.