Speech-or-Debate Clause Does Not Block E-Mail Search

The speech-or-debate clause of the U.S. Constitution does not prohibit federal prosecutors from executing a search warrant for e-mails in Rep. Chaka Fattah's (D-Pa.)  Gmail account.

 

In re Fattah, 3d Cir., 2015 BL 284077, No. 14-3752, 9/2/15

    Fattah has been indicted for his alleged involvement in "several schemes" related to the misappropriation of hundreds of thousands of dollars. Fattah has been fighting an e-mail search warrant for over a year.

    A three-judge panel for the Third Circuit said that Fattah  cannot prevent Google Inc. from turning over his e-mails in response to the warrant. The opinion indicated that the court lacked jurisdiction to consider whether the speech-or-debate clause applies to search warrants.

    Judge Thomas Ambro partially dissented with the majority. He disagreed on the issue of jurisdiction but agreed that the Congressman's e-mails were not protected from a search warrant.

    The appeals court said that the speech-or-debate clause can be used to prevent the introduction of evidence at trial, but not to hinder an investigation by blocking a search warrant.

    "It cannot be... that the privilege prohibits disclosure of evidentiary records to the Government during the course of an investigation," the court said. "If it were any other way, investigations into corrupt Members [of Congress] could be easily avoided by mere assertion of this privilege."

    The court and Fattah did agree that the government needs to have better screening processes for reviewing these types of e-mails. The case was remanded to federal district court to sort out search process details.

http://www2.bloomberglaw.com/public/desktop/document/In_re_Fattah_No_143752_2015_BL_284077_3d_Cir_Sept_02_2015_Court_O