FBI vs. Congress, Round 2

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So here’s where we are now.

Bush’s intervention yesterday, sealing the evidence seized Saturday from Rep. William Jefferson’s office, likely won’t accomplish anything but buy time and aggravate the Justice Department and FBI. And there’s a simple reason why. On the one hand, House Speaker Hastert and Jefferson want the documents returned. On the other hand, the FBI and Justice Department absolutely refuse to return the documents. There’s simply no middle ground there.

Justice Department officials feel strongly enough about it that some senior officials were prepared to resign if Bush ordered the documents returned. FBI and DoJ officials told the NY Times that there was ” virtually no possibility that any material taken legally during the search would be returned since it was now in the custody of the F.B.I. as evidence in an active criminal case.”

Meanwhile, the Chairman of the Judiciary Committee has called a hearing for next Tuesday on the raid. It’s suggestively titled “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?” And as an indication of how far Hastert is willing to go, he has reportedly pursued negotiations with the White House about possible legislation to dictate how prosecutors could pursue congressional materials.

Somehow I don’t see these two sides coming together.

And don’t forget that there’s a third party here: William Jefferson. He filed a motion on Wednesday to have the documents returned. Since that’s unlikely to happen, no matter what comes of the negotiations between the House and Justice Department, Jefferson will continue to press his case in the courts.

The outcome of all this, of course, extends far beyond this particular case. The FBI has been aggressively pursuing a number of investigations on the Hill. In order to press those cases, they need congressional materials.The reason that the FBI raided Jefferson’s office is that he denied them those materials. According to Roll Call, “he and his legal team refused to comply with [a subpoena], citing Congressional privilege and Jefferson’s Fifth Amendment right not to incriminate himself.”

So the larger issue here is whether members of Congress can cite Congressional privilege to rebuff a federal investigation. And although Pelosi and Hastert seem to take it for granted that the law is on their side on this, the legal consensus (certainly not unanimous) is that it’s not. As one constitutional scholar put it to The Washington Post, law enforcement never searched a lawmaker’s office before as a matter of tradition: “It’s really a matter of etiquette…. I don’t see any constitutional principle here.”

So it seems extremely unlikely that Justice Department negotiators will give very much in the negotiations: they stand a good chance of prevailing in the courts, and any ground they give now may adversely affect future investigations.

Bush’s truce, in short, has managed only to temporarily placate Congress and seriously irk officials at the DoJ and FBI.

My prediction: this is a fight that’s going to go on for a long time.