Separated at birth

The powers of the American Executive and the American Legislature are intended to be separate and equal. Unlike the Australian system whereby the Executive by definition almost controls at least the House. And also unlike the Australian system, the Legislative branch upholds its independence from the Executive in spite of party lines.

This principle has never been more powerfully expressed than in the current context regarding the case involving Rep. William Jefferson, D-La. The FBI, an office of the Executive, has accused Rep. Jefferson of fraud and bribery, and would appear to have some pretty good prima facie evidence to support the accusations. But in gathering a full book of evidence, the FBI forcibly entered and searched the Congressman's House of Representative chambers.

The Legislature consider their premises to be their soverign territory. An analogy might be made of the diplomatic immunity that an embassy has, even when on foreign soil. And notwithstanding the criminal act of the individuals cloaked with the immunity.

Without in any way condoning whatever it is that Congressman Jefferson may have done, the leaders of Congress, from both sides of the isle, are demanding the Executive to BACK OFF:


Hastert, Pelosi both condemn FBI seizure of congressman's files

The Republican speaker of the House of Representatives and the House Democratic leader, in an exceptional display of unity, escalated a constitutional confrontation with the Bush administration on Wednesday over the FBI's weekend seizure of files from a congressional office.

In a rare joint statement, House Speaker Dennis Hastert, R-Ill., and Minority Leader Nancy Pelosi, D-Calif., demanded that the Justice Department return documents that the FBI seized from the offices of Rep. William Jefferson, D-La., as part of a bribery investigation.

Hastert and Pelosi challenged the raid as violating the Constitution's separation of powers between the legislative and executive branches of government.

The FBI raid occurred Saturday night when 15 agents armed with a warrant entered Jefferson's congressional offices and pored over his files until Sunday afternoon.

One law enforcement official familiar with the investigation expressed surprise at the stance taken by the House leaders.

"The implications of what they're asking for are huge," the official said, speaking on condition of anonymity to permit candor about a case involving powerful lawmakers. "They're asking that the FBI return documents to a target in the middle of a law enforcement investigation."

Congressional leaders welcomed Hastert's aggressive stance against the administration on behalf of Congress' independent authority.

"You don't want to have executive branch people coming to a congressional office on their whim," said Rep. Tom Davis, R-Va.

The reaction from lawmakers partly reflects frustration over Bush's attempts throughout his presidency to expand the reach of executive power, often at the expense of Congress and the courts. "The founders envisioned a separation of powers, and sometimes we've been too timid about exerting that," Davis said.

Hastert and Pelosi said the Justice Department violated both the Constitution's separation of powers doctrine and its more obscure "speech or debate" clause, which essentially protects members of Congress from interference when the members are conducting official duties.

The clause states that members "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same."

Congressional lawyers haven't found any precedent in the history of the House and Senate similar to the Jefferson document seizure. The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., said the FBI's actions "could have a chilling impact on the legislative branch's ability to function."

Sensenbrenner scheduled a committee hearing for next Tuesday titled "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"

In a statement Wednesday, the Justice Department said it had tried since August to obtain the documents "through other means and were unable to do so."

"There is tremendous respect for Congress's important, independent role, but the department has an obligation to the American people to fully pursue corruption cases wherever the trail of evidence goes," the statement by Justice Department spokeswoman Tasia Scolinos said.

One constitutional scholar suggested that the Department of Justice could appoint a special master who would review the files and determine which ones were relevant to the investigation and which ones weren't.

"The question is, what is the protection to make sure that the files that have nothing to do with criminal activity aren't taken away," said Erwin Chemerinsky, a professor of law and political science at Duke University. "When lawyers' offices are searched, often it is done with a special master to see what is related to criminal activity and what is confidential and unrelated."

The clash with the White House over the documents comes as the Justice Department is conducting a number of investigations into public corruption that could snare Democrats and Republicans alike. Some Republicans worried that voters would gloss over the constitutional issues involved and conclude that Congress was acting out of self-interest.

"Given the attitudes that voters have toward Congress..., directing their fire at the administration on this issue seems wrong-headed and unbelievably misguided," said one Republican campaign consultant who works closely with Republican congressional candidates. The consultant was granted anonymity to speak candidly about his views.

Separately, Pelosi sent Jefferson a terse letter Wednesday urging him to relinquish his seat on the powerful tax-writing Ways and Means Committee.