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Not above the law

May 26, 2006

IT IS OUTRAGEOUS ENOUGH that both the speaker and the minority leader have complained about a lawful FBI search of the offices of a fellow House member. It's even more outrageous that the president is now trying to placate them by announcing that records seized in the search will be off-limits to investigators for 45 days.

A Kentucky businessman has pleaded guilty to paying more than $400,000 in bribes to the family of Rep. William J. Jefferson (D-La.) in exchange for his assistance with business ventures in Nigeria. Jefferson denies any wrongdoing. On Saturday night, FBI agents, armed with a warrant, searched Jefferson's offices in the Rayburn House Office Building.

The search provoked a display of righteous indignation from Speaker J. Dennis Hastert (R-Ill.), who accused the Justice Department of the constitutional equivalent of desecrating a church. Joined by Rep. Nancy Pelosi (D-San Francisco), the speaker invoked the doctrine of separation of powers and demanded that the records be returned. This is the sort of bipartisanship the country can do without.

Like Willie Sutton, who said he robbed banks because that's where the money was, the FBI searched Jefferson's offices because that's where he kept his records. This wasn't a case of jackbooted thugs from the executive branch rifling willy-nilly through congressional files in search of embarrassing information. Unlike Sutton, the agents who searched Jefferson's office were acting lawfully and within the requirements of the 4th Amendment.

The speaker and minority leader make the argument that the search ran afoul of the Constitution's "speech and debate" clause, which says in part that members of Congress "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." Nothing in this language creates a legal force field around Capitol Hill that federal agents with a lawful warrant may not penetrate.

That makes President Bush's actions on Thursday even more indefensible than Hastert's and Pelosi's. Bush said his order would allow time "to resolve the issues in a way that ensures that materials relevant to the ongoing criminal investigation are made available to prosecutors in a manner that respects the interests of a co-equal branch of government."

Although the president is the head of the executive branch, he shouldn't second-guess the conduct of a criminal investigation because of meritless complaints from Capitol Hill. The sooner this "seal" is broken, the better.

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