Witnesses and lawmakers at a congressional hearing on Capitol Hill have sharply criticized an FBI raid on the office of a member of Congress, calling it a dangerous violation of constitutional principles.
One after another, witnesses called the FBI raid on the office of Congressman William Jefferson an unprecedented breach of protections the Constitution provides members of Congress against intrusions by the Executive Branch of government.
In the 18-hour search, under authority of a court warrant, the FBI removed paper and computer records from the office of the Louisiana Democratic lawmaker, who has been the subject of a federal bribery investigation.
That means federal investigators had access not only to material that may have been related to their investigation of Jefferson, but also other material relating to his legislative and representational activities.
House Judiciary Committee Chairman James Sensbrenner, a Republican, says the issues raised by the search transcend any particular member of Congress.
"A constitutional question is raised when communications between members of Congress and their constituents, documents having nothing whatsoever to do with any crime, are seized by the executive branch without constitutional authority," said Mr. Sensbrenner. "This seizure occurred without so much as lawyers or representatives of Congress being allowed to simply observe the search and how it was conducted. Neither was anyone representing the institutional interests of Congress allowed to make a case before a judge raising these important separation of powers issues."
In preparing the affidavit that formed the basis of a court-approved search warrant, the Justice Department said it acted only because other methods had been exhausted, principally a subpoena to force Jefferson to hand over documents.
Constitutional scholar and George Washington University Professor of Law Jonathan Turley calls the raid on the Jefferson office a tradition-shattering challenge to the separation of powers:
"The raid on this office, of Representative Jefferson, represents a profound and almost gratuitous insult to a co-equal branch of government," said Mr. Turley. "In the history of this country, no president has ever ordered or allowed a search of an office of a sitting member of this House."
Turley urges lawmakers to respond forcefully and quickly with legislation aimed at preventing a recurrence of the event.
Bruce Fein is principal partner in The Lichfield Group consulting firm.
"It is exceptionally important that the Congress respond clearly and authoritatively with a statute that rejects the authority of the Executive Branch [of government], whether or not a search warrant is authorized by a judge, to look through the files of a member's office and glance at legislative protected materials under the speech or debate clause," he said. "That kind of authority can be abused to intimidate, to cow Congress, into submission to executive desires."
Robert Walker, a former congressman from Pennsylvania and now chairman of the Wexler & Wexler public affairs firm, does not advocate legislation, but urges Congress to take other steps.
"Congressional leadership must seek an explanation for the seemingly-oblivious nature of the warrant process," he said. Demand a full accounting for the decision-making process that led to the Rayburn [Building] raid. The Judiciary Committee should be prepared to subpoena documents tied to this incident. Seek an explanation for what seems to be a lack of judicial respect for the traditions and precedents that have insulated legislative deliberations from the threat of overzealous exercise of Executive power. "
As they consider responses to the FBI raid, lawmakers are not asserting that members of Congress be immune from law-enforcement investigations. But they are accusing the government of ignoring proper procedures.
Congressman John Conyers is the ranking Democrat on the Judiciary Committee:
"Ten days after the fact, we have never been told why the pending subpoena against a member [of Congress] could not have been enforced consistent with the law," said Mr. Conyers.
Charles Tiefer is Professor of Law at the University of Baltimore School of Law.
"This raid had all the elements of unconstitutional Executive intimidation," said Mr. Tiefer. "It breached what I have just described, a previously sacrosanct constitutional tradition."
President Bush last week ordered that the materials seized by the FBI from Congressman Jefferson's office be sealed for 45 days, a kind of cooling off period as Congress and government officials tackle the issues raised by the search.
Congressional leaders have predicted that the issues are of such magnitude to deserve eventual consideration by the Supreme Court.
Witnesses supported that, and Congressman Sensenbrenner says he will call Attorney General Alberto Gonzalez and other officials to testify in additional hearings.
Although the hearing occurred during a weeklong congressional recess, and did not summon Bush administration witnesses to testify, it ensures the matter will remain a key focus of congressional attention in coming weeks.