In their jointly delivered complaint, Speaker Hastert and Democratic Leader Pelosi, protesting the FBI raid on the Jefferson Congressional office, seemed largely alone.  Blogospheric commentary has been highly unsympathetic; experts have downplayed the constitutional significance of the claim; editorials in major papers are comfortable with the government’s actions, though some—such as the Washington Post this morning—counsel DOJ to seek out more of a negotiated middle ground.  "Saturday Night Search," Washington Post (May 25, 2006) at A28.  Hastert and Pelosi might have expected this unfriendly response.  It is, in some of its formulations, little other than a variation on the theme that politicians, being crooks in inclination or in fact, are grousing in their own self-interest and not for high constitutional principle.
 
     This is fashionable anti-politics: it is the sort of material on which late-night talk show comedy thrives.  Instapundit runs this headline: Congress is Above the Law!   And Glenn Reynolds goes on to suggest that the Members must have something to hide, and that they hypocritically call on constitutional protections while gladly supporting or acquiescing in diminished Fourth Amendment protections for the average citizen.  Something like this cat-calling enters into the otherwise balanced editorial this morning in the Post: there, Congressional leaders’ are taken to task for seeking to "transform congressional offices into tax-payer funded sanctuaries."  This matter doesn’t really bear on the rights of taxpayers.

     Constitutional law commentators take the arguments against the raid to be understandable, not weighty.  Charles Lane of the Post reports the judgment of experts that the "breach was more of the spirit, not the letter of the Constitution."  Charles, Lane, "Breach Was More of the Spirit, Not the Letter, of the Constitution," Washington Post (May 25, 2006) at A10.  He cites Akhil Reed Ahmar of Yale for the proposition that "It’s really a matter of etiquette."  This line of reasoning, while grudging in its acknowledgement of the House’s constitutional position, is not really at odds with Hastert and Pelosi’s emphatic objections.  In cases like this—by its nature unprecedented—we cannot yet say what the Supreme Court, on all facts, would rule, but if the "spirit" of the Speech and Debate clause is implicated, then there is ample reason for concern. 

     There is only so much distance, in matters of constitutional law, between matters of spirit and matters of substance.  It is curious to hear this dismissal of the House’s concerns when, only weeks ago, the Administration was confronted with angry challenges to its NSA wiretapping program, and only in some quarters on the claim that any law was actually broken.  To many, the dangers of the government’s action did not rest entirely on technical argument or any certainty about the outcome of any legal challenge.

     In any event, the constitutional law, in this area, is only as clear as the latest High Court formulation.  It overstates the case to argue precedent in favor of the government’s action here.  Speech and Debate cases are a mishmash, bogged down in the usual miasma of abstractions and illusory factual distinctions. Nothing too clear can be teased out of declarations such as this, from United States v. Gravel: "Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."  US v. Gravel, 408 U.S. 606, 625 (1972).  The Court in Gravel proceeded to say this, hardly further illuminating the matter: "the courts have extended the privilege to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations'."  Id.
 
     But the Court has also said that the "privilege should be read broadly…." United States v. Johnson, 383 U.S. 169, 179 (1966)—"broadly," that is, so as "to effectuate its purposes," Gravel, 408 U.S. at 624.  That the raid on Jefferson’s office may "breach the spirit" of the privilege is the opening, not the end, of the analysis.  This is not an open-and-shut case, far from it; and much of the claim to the contrary is, like so much popular constitutional argument, just rhetorical decoration applied to pure preference.  What those defending the raid mean, in invoking the Speech and Debate cases, is that this precedent should protect DOJ’s behavior.

     It seems that preference is inspired, in many cases, by contempt for politicians, and not only contempt for the specific ones under investigation.  This was, after all, the best of times for DOJ to dispatch its agents into a Congressional office, on a raid.  A public already ill-disposed toward politicians is highly disgruntled.  Congressional approval ratings are dismal.  Everywhere, all the time, there is talk of scandal and word of prosecutors preparing cases, filing motions, preparing pleas.  The Safavian trial is on, refreshing the many tales told about Abramoff.  The DOJ has offered enough of a glimpse of its case against Jefferson to gain, in this environment, the decisive public relations advantage in any constitutional confrontation with the Congress. 

     It is the best of times also because, at this very moment, Congress is putting up a stiff challenge to the Executive Branch on a variety of fronts, but particularly to executive claims of wide, if not unilateral, authority in the conduct of the war on terror and the design and implementation of internal security measures.  Congress is weakened in this struggle by its own political problems, which include the ongoing corruption investigations, and it is powerful imagery indeed—and a powerful message to go with it—when FBI agents flood into a Congressional office to search and seize its contents, refusing any supervision by or even the presence of representatives of the House. 

     Somehow this seems more than a matter of "etiquette."  And simple antagonism toward politicians is not sufficient to justify its acceptance. 

Bob Bauer