Jacob Sullum

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?

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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