Discretion (8 page)

The judge said, “We’re here on the government’s application for a warrant to search Congressman Lionel’s congressional offices. The Congressman has filed a number of motions in opposition. I’d like to commend both parties on their thorough research and legal argument.” The judge held up a thick binder. “But sometimes, Mr. Davenport, less would be more.”

Behind her, Anna heard the courtroom door swinging open. She glanced back and saw a few reporters coming in. Paul Wagner, from FOX 5, and Del Quentin Wilber, who covered crime for the
Washington Post.
The court database might not have this hearing docketed, but these guys had human networks that were higher-speed than most government computers.

The judge said, “I’m denying the Congressman’s motions to seal the courtroom and gag the prosecutors. Criminal proceedings are presumptively open to the public, and I see no reason to alter that calculus here. Your arguments are creative, Mr. Davenport, and you can raise them with the Court of Appeals if you so choose.”

Anna was glad that the judge was ready to cut to the real arguments. That was both the greatest and most frightening thing about Judge Redwood. She had a low tolerance for bullshit.

“On the merits,” Judge Redwood continued, “the government proposes a search of Congressman Lionel’s office for evidence related to the death of Caroline McBride. The government hypothesizes that Ms. McBride may have been working in her capacity as an escort at the time of her death. The prosecution seeks to search the Congressman’s office and to seize documents as well as computer records, including e-mails, that may show whether Congressman Lionel or any of his staffers arranged for the victim to visit the Congressman’s office.”

The judge looked up from her papers. “I commend the government for getting a search warrant before going in to search. With a case this sensitive, and law so novel, it was wise to get a judge’s approval first. It shows me that the government is acting in good faith. Which will go a long way as this case progresses.”

Jack met Anna’s eyes and smiled. She felt a rush of relief as she was vindicated for her caution the night before.

“I’ll hear argument now,” the judge said.

As Anna stood up, she could hear more people coming into the courtroom. Word had gotten out. She tried to ignore the sounds of seats swinging down, papers rustling, and whispers.

“As set forth in the affidavit,” Anna said, “there is probable cause to believe than an assault occurred last night and that we may find evidence of that crime in Congressman Lionel’s office. The victim had an appointment to visit the Congressman, which we understand required e-mails to the Capitol Police. Records of such e-mails should be on one or more computers in the Congressman’s offices. The government also seeks documents relating to the agency for
which 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 Congressman
Lionel 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. Ever. Only items that have no relation to the legislative process can be seen by the police.”

“Mr. Davenport’s process could take weeks,” Anna said, “even months, before we would get evidence we are entitled to. Your Honor knows how important the first forty-eight hours are in a homicide investigation.
Jefferson
was a public corruption case without the same exigencies as a homicide case. We propose to set up a filter team, of police officers unaffiliated with the prosecution, to take the first look at the papers in the Congressman’s office. Documents that relate solely to legislative acts will be returned to the Congressman.
Those that do not, and which might relate to the crime, will be immediately turned over to the prosecution. Anything ambiguous will be submitted to Your Honor for review.”

Davenport said, “Your Honor, the government suggests the same process rejected by the D.C. Circuit in
Jefferson.
Congressman Lionel is shocked and saddened that a woman died by falling from a balcony attached to his office. But I am equally shocked and saddened that a government lawyer would use that tragic death to propose a process that has been found to be unconstitutional.”

“How important is this, Ms. Curtis?” the judge asked. “This isn’t a bribery case, or a pay-to-play scheme, where evidence of the crime would more likely be written. What do you expect to find in the Congressman’s papers?”

“There could be notes related to the victim or where she worked. An appointment in a calendar. A business card from the escort agency. Written reference to the agency’s location or phone number.”

The judge leaned back in her chair and studied the ceiling. Then she returned to her usual straight-backed posture and shook her head. “I appreciate your arguments, Ms. Curtis. A homicide case is a different creature than a public corruption investigation. But I’m not going to disagree with the
Jefferson
case. The Congressman may take the first pass through the items to be searched and pull out any legislative materials.”

“Thank you, Your Honor,” Davenport said.

It was a blow, but not unexpected. Lionel’s people could significantly delay when Anna got to see incriminating documents by claiming they related to his “legislative process.” The judge would double-check their work, but she wouldn’t necessarily know what to look for, and her review could take weeks, depending on the volume of materials Lionel dumped on her. Anna wouldn’t even have a chance to argue that the papers weren’t legislative—she’d never even see them. This was a huge disadvantage in investigating a sitting congressman. If Lionel were a car salesman, they’d be able to search everything in his office right now.

“There’s one final matter,” Davenport said. “I’ve learned that the prosecutors requested the Capitol Police to pull the security
videotape throughout the Capitol from last night. We move to squash that request.”

“On what grounds?” the judge asked.

“Again, Speech or Debate. The security videos capture the movement and meetings of 435 members of the House, five nonvoting delegates like Congressman Lionel, and a hundred senators, not to mention their staffs. They reflect meetings with constituents, lobbyists, and members of the press. The videos reveal who attended meetings with whom, and for how long, in the U.S. Capitol itself. These are core legislative acts that cannot be exposed to the Executive Branch.”

Anna was alarmed. “Those videotapes are essential to the homicide investigation,” she said. “The whole case might be solved with them. And the meeting in Congressman Lionel’s hideaway last night was hardly legislative in nature.” She felt the same anger she had last night, when all of the Congressman’s staffers refused to talk to them. It offended her sense of public service that an elected official would impede a criminal investigation, even an investigation of himself.

“Whatever meeting preceded the young lady’s death could easily have been related to legislative activity,” Davenport countered. “I understand that the young lady was a constituent.”

“Most of what’s depicted on the videotape will be legislative activity,” Judge Redwood said, nodding. “The tapes would allow the Executive Branch to see the inner workings of the Legislature. Meetings with constituents and lobbyists and the press. Exactly what the Speech or Debate Clause is meant to prevent.”

The judge looked troubled. It was a sticky constitutional issue involving two major players: Congress versus the Department of Justice. Her decision would set a groundbreaking new rule in constitutional law and would be Monday-morning-quarterbacked by every legal analyst on cable TV.

“I’m not going to decide this now,” she said. “This motion comes as a surprise, and I want to give the government a chance to brief the issue. I would also like to hear from the general counsel to the House of Representatives, to find out his position on the matter. We’ll reconvene in four days, on Friday, for argument.” The judge looked at
Anna. “Unless the government decides to drop the issue. I think Mr. Davenport has the better of this argument. My decision may not be something the government wants on the books.”

The proceeding was adjourned.

Anna sat back. She felt sandbagged by Davenport’s move to keep the videos from them. And the judge’s signal was not a good one for the prosecution. A ruling against them here would subsequently make it much harder for any future prosecutors to get videotapes from Congress.

Anna turned to Jack. “I’m sorry about the videotapes.”

“Welcome to Homicide. Don’t expect anything in this case to be easy.”

9

A
nna understood the drill: Keep your head down, keep walking, and keep saying, “No comment.” She knew some of the reporters and liked them. But line prosecutors in the U.S. Attorney’s Office weren’t allowed to talk to the press about cases. If she stopped to chat, the journalists would try to eke some nugget of information out of her—and they were good at it. So she kept walking out of the courtroom, even as she said, “Hi, Del. I loved
Rawhide Down
. No comment, sorry.”

Jack just shook his head at them. They knew him well enough not to even try. If a public statement were to be made, the head of the office would make it, or issue a written press release.

As Jack and Anna walked out the glass doors at the front of the boxy concrete courthouse, the steamy August air condensed onto her air-conditioned cheeks. She hardly noticed. She was distracted by a fleet of news vans parked on Indiana Avenue. She recognized local channels like FOX 5 and WTOP but also saw logos for CNN and MSNBC. The story was national. An army of photographers waited by the curb. Their line of tripods reminded her of a row of aliens in Space Invaders.

Anna was surprised to see a woman holding a printout with Anna’s picture on it. Anna recognized the article from Above the Law, a popular legal website that had covered her scandal the year before. “Here!” the woman shouted to the line of tripods. The cameras pivoted like synchronized swimmers toward Anna and Jack. She realized why the woman had printed out the article. The reporters wanted a shot of the prosecution team leaving the courthouse—cameras weren’t allowed inside—but they didn’t know what the prosecutors looked like, so they’d Googled Anna and found the picture. She hated that such a low point in her life was still her primary cyber-image. If this case turned out well, maybe newer, better articles about her would bump the old ones into obscurity.

After a few seconds on the prosecutors, the cameras pointed back to the front door. The shot they really wanted was the Congressman exiting the courthouse. Which was exactly why he hadn’t shown up today.