What Happened?

If federal investigators knock on a lawmaker's door with a search warrant, what they are allowed to read may depend on which federal court hears the case. Federal appeals courts remain divided over whether investigators can access a lawmaker's protected congressional materials during an investigation. The Congressional Research Service (CRS) published a report examining how the Fourth Amendment and the Speech or Debate Clause intersect when federal investigators seek congressional materials. ​

The core dispute is whether the Speech or Debate Clause stops investigators from even reading protected legislative materials during a search, or only bars prosecutors from using those materials as evidence at trial. The Supreme Court has not resolved the disagreement.

Why Does it Matter to Me?

Rep. Ilhan Omar (D-MN), offers a recent example of the question in practice. Homeland Security Investigations agents searched her D.C. home on Oct. 12, 2026, as part of a criminal investigation, and Omar told MS NOW that agents took 17 items, including old phones belonging to her and one of her daughters. Omar said agents asked her to sign a paper waiving certain rights she has as a member of Congress, and she declined to sign it.

Under the Speech or Debate Clause, members of Congress are protected from civil and criminal liability relating to their legislative acts, and NBC News reported that seizing a sitting member's phone typically triggers law enforcement protocols meant to uphold that protection. A person familiar with the investigation told NBC News that possible charges include conspiracy and making false statements in immigration paperwork, and the Justice Department did not immediately respond to a request for comment on Omar's account of the search.

The CRS report notes that current case law has not resolved whether a member's home receives the same protections as a congressional office. That gap matters because investigators may seek records wherever a lawmaker stores them. Congress amended 2 U.S.C. § 6628 in 2025 to expand protections for Senate data, then repealed those amendments in February, restoring the earlier statutory framework.

Both Sides, Now

The D.C. Circuit has adopted the broadest reading, holding that the Speech or Debate Clause creates a "nondisclosure privilege" that prevents investigators from reviewing protected legislative materials at all during a search.

That position grew from two real cases. In *United States v. Rayburn House Office Building*, the D.C. Circuit ruled that an FBI search of former Rep. William Jefferson's office violated the clause because agents reviewed protected materials before he could assert the privilege. In 2023, the court extended that logic to a cellphone, ruling in *In re Sealed Case* that some records seized from Rep. Scott Perry (R-PA-10) in August 2022 were protected, according to Justia.

The Third and Ninth circuits have rejected that rule, recognizing a protection against using privileged materials as evidence without adopting the nondisclosure rule.

A House Judiciary Committee majority interim staff report published in September concluded that nondisclosure orders preventing lawmakers from learning about requests for their phone records violated controlling D.C. Circuit precedent, though that reflects the committee majority staff's legal interpretation, not a definitive judicial ruling.

What Happens Next?

Congress has three main options: codify search procedures modeled on the *Rayburn* ruling, amend the federal rule governing search warrants to add specific safeguards for congressional materials, or leave the circuit split unresolved and wait for the Supreme Court to take it up.

Searches involving congressional materials can raise both Fourth Amendment and legislative privilege questions, and the applicable protections may depend on the circumstances of the investigation and the controlling federal circuit.

The question of who decides, Congress through new legislation, or the Supreme Court through a future case, remains open. Will lawmakers act before the next high-profile search forces the issue?

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