Indicted Congressman Can’t Shield His Gmail

PHILADELPHIA (CN) - The government's plan to subpoena U.S. Rep. Chakah Fattah's email records will not face review by the Third Circuit Court of Appeals.

Though indicted only a month ago, the Democratic congressman was under investigation for a number of years, including during his most recent re-election campaign in 2012, which he won by a landslide.

In the interim, Fattah saw a former aide, Gregory Naylor, go down for concealing the misuse of $622,000 in campaign contributions and federal grant funds.

The politician's son, Chaka Fattah Jr., meanwhile has been fighting charges for at least the last year that he defrauded banks, the Internal Revenue Service and the School District of Philadelphia.

Rep. Fattah was served with a grand jury subpoena back in February 2014, seeking various documents, including electronic data from the congressman's Gmail account.

A federal magistrate judge ultimately issued a search warrant authorizing the FBI to search Fattah's Gmail account for evidence, going back as far as 2008.

Google told Fattah about its receipt of the government's search warrant on June 18, 2014, and Fattah in turn moved to have a federal judge in Philadelphia quash the search warrant.

Though the congressman claimed that the warrant's execution would violate his privileged communications with attorneys and work product, the court saw no free-speech issue and refused to quash the warrant.

With the warrant still unexecuted, Fattah appealed to the Third Circuit.

A three-judge panel with that court threw out his challenge Wednesday, finding that the court lacks jurisdiction to review this issue.

An unexecuted search warrant involves the merits of the case against Fattah and can be reviewed on appeal if Fattah is convicted of the charges against him.

As such, it does not qualify for review at this juncture under the collateral order doctrine, according to the ruling.

The lower court had noted that Fattah need not worry about his privileged documents because the government could review the account for such records with a "taint team."

Fattah is charged with misusing campaign funds to pay his son's college debt and to pay off loans owed to lobbyists.

The congressman had argued that a search of his emails would violate the Speech and Debate Clause of the U.S. Constitution, meant to prevent intrusions into legislative affairs, but the court found Wednesday that Fattah is twisting the law.

"If it were any other way, investigations into corrupt members [of Congress] could be easily avoided by mere assertion of this privilege," Judge Julio Fuentes wrote for the court. "Members could, in effect, shield themselves fully from criminal investigations by simply citing to the Speech or Debate Clause. We do not believe the Speech or Debate Clause was meant to effectuate such deception. Rather, the 'purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.' That is, the clause was meant to free "the legislator from the executive and judicial oversight that realistically threatens to control his conduct as a legislator.' The crux of the clause is to 'prevent intimidation by the executive and accountability [for legislative acts] before a possibly hostile judiciary.' It is clear that the purpose, however, has never been to shelter a member from potential criminal responsibility."

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