Pols wary of Hastert’s anti-FBI raid stance

While the leadership of the House of Representatives say they are upset the FBI had the audacity to raid the office of one of their own, corrupt Louisiana Democratic Congressman William Jefferson, other more level-headed members aren’t willing to put their dogs in that fight.

Writes Laurie Kellman of The Associated Press:

Some lawmakers are warning of a voter backlash against members of Congress "trying to protect their own" if party leaders keep escalating a constitutional dispute over the FBI’s raid of a representative’s office.

Yet not long after House Speaker Dennis Hastert and Minority Leader Nancy Pelosi demanded on Wednesday the bureau return documents it took, White House aides were in talks with Hastert’s staff about the possible transfer of the material, perhaps to the House ethics committee, according to several Republican officials.

The goals of any transfer, they said, would be to deny the documents both to prosecutors and to Rep. Willliam Jefferson, a Louisiana Democrat ensnared in a bribery investigation, until the legal issues surrounding the weekend search of his office are resolved. The officials spoke on condition of anonymity, citing the confidential nature of the discussions.

The confrontational approach by Hastert, R-Ill., and Pelosi, D-Calif., did not sit well with some colleagues.

"Criticizing the executive and judicial branches of our government for fully investigating a member of Congress suspected of criminal wrongdoing sends the wrong message and reflects poorly upon all of Congress," Rep. Barbara Cubin, R-Wyo., said in a statement. "They should not expect their congressional offices to be treated as a safe haven."

A GOP colleague, Sen. David Vitter of Louisiana, said the public "will come to one conclusion: that congressional leaders are trying to protect their own from valid investigations."

While some lawmakers contended the executive branch overstepped its authority, Senate Democratic leader Harry Reid of Nevada has declined to condemn the search.

"I’m not going to beat up on the FBI," said Reid, a frequent critic of the White House’s use of executive power.

Around the county, radio talk show phone lines heated up with irate callers chastising Hastert and other House leaders for suggesting they are above the law.

Even worse, legal experts tell Charles Lane of The Washington Post that while the raid may have violated custom it did not violate the Constitution:

The FBI raid on Rep. William Jefferson’s congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say.

The issue could turn on whether a court finds that the items seized from Jefferson’s office were related to such protected legislative activities as writing, researching and voting on bills. Other things could be fair game for the prosecution, analysts said.

"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University’s Fletcher School of Law and Diplomacy.

The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.

Both the search warrant for Jefferson’s office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers — and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.

But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.

"It’s really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don’t see any constitutional principle here."

On Wednesday, House Majority Leader John Boehner said the Justice Department needed to read the Constitution. We might suggest the same for Mr. Boehner.