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...given my understanding of the low likelihood that any of the Members listed below would be charged, the litigation risk should be minimal here."
Notwithstanding the clarity of the D.C. Circuit’s holding in Rayburn House Office Building, “that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the [Speech or Debate] Clause,” the Biden Administration agreed with Special Counsel Smith’s decision to subpoena the congressional Republicans’ telephone records. The oxymoronically named Public Integrity Section justified its concurrence based on its “understanding of the low likelihood that any of the Members listed below would be charged,” and therefore “the litigation risk should be minimal here.”In other words, the Biden Administration ignored Smith’s blatant violation of congressional Republicans’ constitutional rights under the Speech or Debate Clause because the special counsel’s office was unlikely to criminally charge any of the congressional Republicans — and therefore, there was little “litigation risk” that a court would exclude the unconstitutionally seized evidence.