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A search and an answer

July 12, 2006

AFTER THE FBI SEIZED RECORDS from the Capitol Hill offices of Rep. William J. Jefferson (D-La.), the subject of a bribery investigation, Jefferson's colleagues from both parties lurched into outrage mode. Rep. F. James Sensenbrenner Jr. (R-Wis.), the chairman of the House Judiciary Committee, even held a hearing about the search with the dramatic title, "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?" It was a rhetorical question, but a federal judge this week provided the answer anyway: No.

District Judge Thomas F. Hogan's decision upholding the search is an embarrassment not only for Congress but for President Bush. The president capitulated to congressional whining by "sealing" Jefferson's records and computer discs for 45 days so the FBI wouldn't have access to them. (The seal expired a few days ago.) Hogan made legal mincemeat of Jefferson's absurd argument that the Constitution's "speech or debate" clause, which protects members of Congress from prosecution because of their legislative activities, immunized Jefferson's office from an otherwise lawful search. Such an interpretation "would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime," Hogan wrote.

This is not exactly new legal ground. In 1972, in a case cited by Hogan, the Supreme Court ruled that the clause did not protect a senator under criminal investigation. In one of the great understatements of judicial history, the high court noted that "taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act."

It's understandable that members of Congress would cringe at the invasion of their precincts by FBI agents, even if they were armed with a warrant. Ordinary Americans feel the same way when their homes and offices are searched by the police. But when law enforcement officials convince a judge that a search for documents -- as opposed to a subpoena -- is necessary, citizen and congressman alike must comply.

Jefferson's lawyers are expected to seek a court order preventing the FBI from examining Jefferson's records while he appeals Hogan's ruling. The Bush administration can atone for its previous coddling of Congress by opposing any such relief.

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