It’s Really a Good Idea to Get a Warrant Before Bugging a Senate Office

The [fictional] Senator Ellen Nadeer has engaged in domestic terrorism, kidnapping, murder, conspiracy, insurrection, and a host of other no-no’s for any sitting Senator on Agents of SHIELD. Phil Coulson and Yo-Yo set out to plant recording devices in the Senator’s office in the “Stamford Wing” of one of the Senate Office Buildings in the episode “Wake Up.” While an excellent homage to Marvel’s Civil War, why didn’t Coulson get a search warrant for a United States Senator?

There have been members of Congress investigated by the FBI in the real world. Generally speaking, law enforcement agencies must get a search warrant before conducting a search of property to comply with the 4th Amendment to the United States Constitution. The warrant requirements for wiretaps for intersecting written, oral, electronic communications require an application the authority for the application and the following:

(a)  the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(b)  a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c)  a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d)  a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(e)  a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and

(f)  where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

18 U.S.C.S. § 2518(1)(a)-(f)

Jemma Simmons arguably would be the best SHIELD Agent to make the application as the investigating officer for SHIELD, because she both “treated” Vijay Nadeer, Senator Nadeer’s brother, and investigated the Senator’s property to find Vijay. Simmons could explain that the status of Vijay is unknown and that the Senator is connected with the domestic terrorist organization known as the Watchdogs. The duration for the investigation could be for a reasonable amount of time for investigating the terrorist connection, possibly 30 days to see what contact takes place.

Executing search warrants on members of Congress can be complex because of the Speech and Debate Clause. In one of the rare cases of searching a Congressman’s office,  the Congressman who was the subject of the search warrant should have had an opportunity to review files to see if they were protected by the Speech and Debate privilege, prior to the Government removing the files from his office. United States v. Rayburn House Office Bldg., 378 U.S. App. D.C. 139, 147-48 (2007).

A wiretap a Senator’s office would throw the Speech and Debate Clause out the window, because everything the Senator Nadeer did and said would be recorded. In one case with a state senator under investigation that authorized a wiretap, the requirement that no other investigative means would be effective, because the state senator told a cooperating witness that he would not include himself in any incriminating conversations with third-parties. See, 18 U.S.C.S. § 2518, referencing United States v Bankston (1999, CA5 La) 182 F3d 296, reh den (1999, CA5 La) 1999 US App LEXIS 25466, cert den (2001) 534 US 1043, 122 S Ct 620, 151 L Ed 2d 542 and revd on other grounds, remanded sub nom Cleveland v United States (2000) 531 US 12, 121 S Ct 365, 148 L Ed 2d 221, 2000 CDOS 8942, 2000 Daily Journal DAR 11849, RICO Bus Disp Guide (CCH) P 9970, 2000 Colo J C A R 6139, 14 FLW Fed S 3 and revd on other grounds, remanded sub nom Goodson v United States (2000) 531 US 987, 121 S Ct 476, 148 L Ed 2d 450, 2000 Daily Journal DAR 12031.

Other cases with wiretaps have rejected the Speech and Debate Clause where members of Congress engaged in racketeering. See, United States v. McDade, 827 F. Supp. 1153, 1180 (E.D. Pa. 1993).

The same logic would apply to Senator Nadeer, because being in a conspiracy to conduct domestic terrorism, murder, kidnapping, insurrection, and treason, are not legislative acts protected by the Speech and Debate Clause. Director Mace, Phil Coulson, and Jemma Simmons should have consulted with a SHIELD attorney, or turned the matter over to the Department of Justice, so the FBI could have properly executed a warrant for the investigation of Senator Nadeer.