Since when is Congress worried about the separation of powers

Jacob Sullum
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Posted: May 31, 2006 12:05 AM

When I lived in Manhattan, I often witnessed canine altercations in which one dog would start barking and lunging, the other would respond in kind, and the two owners would drag them apart, leaving me shaking my head and wondering, what was that about? I had a similar reaction to the recent controversy over the FBI's court-authorized search of a congressman's office.
 
As is often the case with dogfights, the conflict had something to do with protecting territory. But contrary to the claims of House Speaker J. Dennis Hastert (R-Ill.) and other congressional leaders, it had very little to do with the Constitution.

The weekend before last, FBI agents conducting a bribery investigation searched the Capitol Hill office of Rep. William J. Jefferson (D-La.), taking datebooks, a copy of his computer's hard drive, and other records. A few days later, Hastert and House Minority Leader Nancy Pelosi (D-Calif.) issued a joint statement saying, "The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the Constitutional principle of Separation of Powers, the Speech or Debate Clause of the Constitution, and the practice of the last 219 years."

Hastert and Pelosi seem to be right that the executive branch has never before conducted such a search, but that does not make it unconstitutional. The usual practice when members of Congress are under investigation is to obtain documents through subpoenas. The Justice Department says it decided to seek a search warrant because Jefferson had failed to cooperate with a subpoena issued last August. 

Hastert and Pelosi's reference to the Speech or Debate Clause -- which protects members of Congress from liability for statements they make on the floor of the House or Senate and from "arrest" in civil cases while they are carrying out their legislative duties -- is a red herring. The clause includes an exception for cases involving "Treason, Felony and Breach of the Peace," a phrase that covers bribery.

So we are left with the vague claim that the FBI search threatened the separation of powers between the legislative and executive branches. The most plausible concern on that score is that confidential information related to Jefferson's legislative duties could have been compromised. But if that's the issue, why were there no similar objections when the FBI searched his homes in Washington and New Orleans last year?

After President Bush intervened in this argument, instructing the solicitor general to take possession of Jefferson's records for 45 days while the two sides work out guidelines for future searches, Hastert conceded that FBI agents could cross the threshold of a congressman's inner sanctum without violating the Constitution. He mainly seems to want advance notice of searches, plus an opportunity to have a lawyer present.

Such a compromise will be pretty anticlimactic following the vehement complaints provoked by the search of Jefferson's office. House Rules Committee Chairman David Dreier (R-Calif.) called it "really outrageous." House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) found it "profoundly disturbing." Former House Speaker Newt Gingrich said it was "the most blatant violation of the constitutional separation of powers in my lifetime."

Forget about Gingrich's lifetime. The search was not even the most blatant violation of the constitutional separation of powers in May, when it was revealed that the National Security Agency has been pressuring telephone companies to violate federal law by divulging their customers' records without a court order or subpoena. The Bush administration has shown a similar disdain for congressional authority in areas such as wiretapping, interrogation techniques, and the detention of suspected terrorists. 

Confronted by a president who asserts the prerogative to ignore the will of Congress whenever he thinks national security requires it, our brave representatives in Washington are squabbling over who gets to watch when the FBI thumbs through their corrupt colleagues' calendars. If only they worried as much about what happens outside their offices.