Search of Capitol Hill office creates another storm
Lawmakers gathered on the House floor Monday evening to vote on veterans benefits, but that's not what caused most of the buzz. Nor was the corruption probe of Rep. William Jefferson (D) of Louisiana the leading topic of conversation.
No. More than reports of videotaped bribery and cash hidden in his home freezer, the scuttlebutt centered on the fact that the FBI had, for the first time, searched a congressional office.
Is Congress missing the point - or is there a serious constitutional issue at stake here?
On Capitol Hill, at least, the constitutional concern runs deep - and across party lines. "When I first saw [reports of the search], I thought: 'Wonder if the federal government needs to be reined in,' " said Rep. Zach Wamp (R) of Tennessee.
Even House Speaker Dennis Hastert weighed in, following what colleagues describe as angry phone calls from his staff to the Justice Department. "The Founding Fathers were very careful to establish in the Constitution a separation of powers to protect Americans against the tyranny of any one branch of government. They were particularly concerned about limiting the power of the Executive Branch," he said in a statement.
"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by members of Congress," he added, noting especially the need to protect "certain legislative branch documents." "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."
Legal analysts locate those protections in Article I, Section 6 of the Constitution, known as the "Speech or Debate" clause, intended to ensure that Congress was not intimidated or controlled by the executive branch. Typically, when there's a subpoena for congressional documents, it goes to the House or Senate legal counsel to make certain that congressional interests are being protected. Otherwise, there's no protection for the executive branch rifling through committee papers, for example.
The Justice Department appeared aware of the potential problem. In a statement on Monday, Attorney General Alberto Gonzales said the FBI had used special procedures to deal with constitutionally protected materials. "I think the executive branch intends to work with the Congress to allay those concerns."
Reportedly, those procedures included the use of a "filter team" to determine whether any of the seized documents were privileged. The team, made up of FBI agents and prosecutors who were independent of the investigation, would keep such documents from being perused. A judge was to rule on any seized documents whose status was in question, according to the affidavit.
A federal district judge in suburban Virginia issued the warrant that allowed the FBI to search Jefferson's office.
"It's an extremely complex area of constitutional law," says Carl Tobias, a law professor at the University of Richmond. "Historically, even if the FBI had a warrant, there's no precedent for intrusion into the office of a member of Congress."
But with the approval rating for Congress at 21 percent - three points short of its all-time low - there are signs that the public isn't picking up such constitutional distinctions. Nearly half of Americans believe that most in Congress are corrupt and that corruption affects both parties equally, although they trust Democrats to handle the issue better than Republicans, according to a recent Gallup poll.
"The tone has been set by the top of the Republican Party. I've never seen a Congress as corrupt as I've seen here, and I've been in the Congress 32 years," said Rep. Henry Waxman (D) of California.
After some 16 months of gridlock, the House ethics committee, or Standards of Official Conduct, is getting back on track. The panel, which went through turmoil after initiating an investigation into then-majority leader Tom DeLay, is under new leadership and launching investigations into Jefferson and Rep. Bob Ney (R) of Ohio, and into any cases related to convicted former Rep. Duke Cunningham (R) of California.
"Members of Congress must obey the law and cooperate fully with any criminal investigation; if they don't they will be held accountable," said Democratic leader Nancy Pelosi in a statement, referring to Jefferson's refusal to turn over documents to the FBI that were subpoenaed some eight months ago.
Jefferson, for his part, said Monday that "there are two sides to every story" and that he expects to be exonerated. He has not been charged with any criminal conduct.
Staff on both sides say they expect Speaker Hastert and Ms. Pelosi to speak soon on how to protect Congress from abuse of power by the executive branch. "I expect to seek a means to restore the delicate balance of power among the branches of government that the Founders intended," Hastert said, in a statement.
Similar concerns were raised after the FBI's ABSCAM sting operation, which resulted in the conviction of seven members of Congress and five other public officials on bribery charges between 1978 and 1980. The scandal produced the first expulsion from the House since 1861.
"Like ABSCAM, the Jefferson case does seem to be an egregious case of corruption. Congress's best response would probably be to police itself more effectively, rather than claim the executive is violating 'balance of power,' " says Julian Zelizer, a congressional historian at Boston University.
AP material was used in this report.