Some time ago, in this space, questions were raised on word that former Congressman Cunningham wore a wire as part of his cooperation, once he was doomed, with the Department of Justice.  It does not appear that he did wear a wire, or at least nothing of the sort has been confirmed.  But the point then was that the DOJ seemed intent on broadening, without regard to constitutional limits or sensitivities, the range of techniques applied to the investigation of “public corruption.”  Senior Department officials had said as much.  And now, in the wake of the raid on Congressman Jefferson’s Congressional office, it is clear that they meant what they said.  And the Department should be asked to answer for this.

     It does not matter that Congressman Jefferson is alleged to have committed serious crimes, or that as described in court documents and released to the press, some evidence allegedly obtained so far in the investigation is sensational in character and disturbing.  The Department made a considered decision to raid a Congressional office—to show up, demand entry, and sort through and seize the office files of a sitting Member.  Now DOJ is suggesting that discussion with the Congress would be constructive, that some “protocol” for these circumstances might be negotiated. We can be sure that these types of discussions—these alternative approaches—were considered before the Jefferson raid, but they were rejected.  This rejection was for a reason, and the reason may have been that the Department wanted to make a statement:  “We can do this, and we will.”

     Conducting investigations with some flamboyance, to send a message, is not unheard of in Congressional investigations.  The implications of this approach, in this context, must give pause, even to hard-boiled skeptics of Congressional motivation or to boosters of wide-ranging inquiries into corruption.  This is, after all, an Administration enamored of the swagger, taken with the effectiveness of the show-of-force.  Engaged now with the Congress in a series of tests, principally but not exclusively over authority and oversight in national security matters, the Administration was here playing to one of its political strengths—the charges against Congress’ “culture of corruption,” heard often as other prominent, visible investigations proceed.  It is in this context that the Administration elected to conduct the Jefferson raid, and it is for this reason that the raid is both odious and ominous.

     It is striking, though possibly only a curious turn, that in the years that Republican officeholders have been investigated in the ongoing “Abramoff” scandal, the first raid of this kind, launched by a Republican Administration, was directed against a Democrat, in an entirely separate and unrelated inquiry.  Was this a partisan strike?  Perhaps not, and, in fact, it may well have served as the most effective way to deliver a message to the Republicans, the once loyal co-partisans now passing into active opposition at a sensitive time on critical issues before the Congress.  The message:  “We have done this, and we can do it again.”

     Then again, none of these considerations may have influenced the raiding decision; but then, this uncertainty—clear menace, but in its detail and timing left to the imagination—is what makes this conduct both dangerous and effective.  Justice Brennan had it quite right when, dissenting thirty-four years ago in United States v. Brewster, he wrote that criminal investigations of sitting Members of Congress implicate “principles of legislative freedom developed over the past century in a line of cases culminating in Johnson.  Those principles…deserve more than the hasty burial given them by the Court today."  408 U.S. 501, 529 (1972) (Brennan, J., dissenting). 

     And they deserve more than “hasty burial” or smug political dismissal now. This issue is not simply, as the New York Times claims, one of working out “some ground rules.”  "Searching the Congressman's Office," New York Times (May 24, 2006).  Some issues of constitutional significance cannot be negotiated out so easily, as the Times itself recognizes, also today, in its lead editorial on the Administration’s interest in prosecuting journalists for the publication of classified material.  "A Sudden Taste for the Law," New York Times (May 24, 2006).  Constitutional sensitivities cannot be, as the Times seems to think, simply a matter of whose ox is being gored.  The world in which Congressional offices are raided by the Executive is the one in which the prosecution of Times reporters is equally conceivable.

Bob Bauer