Court: Investigators can examine Fattah emails

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U.S. Rep. Chaka Fattah is swarmed by the media as he leaves the U.S. Federal Courthouse in Philadelphia on Aug. 18, 2015. (CLEM MURRAY/Staff Photographer)

U.S. Rep. Chaka Fattah can't keep federal investigators out of his Gmail inbox by claiming a congressional privilege typically used to protect lawmakers from interference by the executive branch, a federal appeals court ruled Wednesday.

The decision - by a three-judge panel of the U.S. Court of Appeals for the Third Circuit - clears the way for prosecutors to sift through seven years of the Philadelphia Democrat's private email as they prepare for his trial on racketeering conspiracy charges next year.

Fattah - who was charged in July with misusing campaign funds, charitable donations, and federal grant money under his control - has fought for months to block an FBI search warrant seeking access to his correspondence.

His office declined to discuss the court's ruling Wednesday afternoon. His lawyer, Luther E. Weaver III, also declined to comment, saying he had not had a chance to read the opinion.

The case before the court dates back to February 2014, when a federal grand jury first subpoenaed documents from Fattah's office, including emails from a Gmail account that he also uses for work. (No policy prevents House members from using personal email addresses to conduct congressional business.)

Though Fattah handed over some emails at the time, he objected to giving others. He later challenged a search warrant served on Google for access to his email records.

In both cases, he cited "the speech and debate clause," a provision of the Constitution meant to prevent the executive branch from meddling in legislative affairs.

Under the clause, lawmakers cannot be questioned by investigators or held criminally responsible for their legislative actions. The provision also bars prosecutors from using documents related to legislative activity as evidence in court.

Congressional lawyers have fiercely protected that right over the years and joined Fattah in his case before the Third Circuit.

But in writing the court's opinion Wednesday, Judge Julio M. Fuentes said "speech and debate" was not an all-purpose shield to protect lawmakers from criminal investigations.

While it may prevent some Fattah emails from being used against him at his trial, it does not prevent prosecutors from obtaining the information as part of their investigation, Fuentes wrote, citing previous Third Circuit rulings.

Members of Congress "are not to be 'super-citizens' immune from criminal liability or process," he wrote. Granting Fattah's request "would set bad precedent and insulate members from criminal investigations and criminal process. This, of course, cannot and should not be the purpose of the clause."

He was joined in that opinion Wednesday by Judges Thomas L. Ambro and Jane Richards Roth.

Still, their ruling brought some good news for the embattled representative.

In a separate argument, Fattah had maintained that some of his emails contained conversations with his lawyers that would be protected under attorney-client privilege.

An earlier court decision set up a "taint team" of Justice Department agents and lawyers not attached to his criminal case to review his emails and weed out any such correspondence.

The Third Circuit, however, sided with Fattah in ruling Wednesday that the team should be made up of lawyers only.

Fattah, whose congressional district includes parts of Philadelphia and a small portion of Montgomery County, faces trial in May on allegations that he accepted bribes from a lobbyist and used taxpayer money to enrich himself, his family, and members of his inner circle.

Currently in his 11th term in office, he has repeatedly denied wrongdoing and has vowed to fight the charges in court.


jroebuck@phillynews.com

215-854-2608@jeremyrroebuck

Inquirer staff writer Jonathan Tamari contributed to this article.