Hill Search Escalation

Here's a bit of interesting news that seems to have been carefully hidden. A google news search only came up with about half-a-dozen articles on the topic, and none were very specific as to the case. Fortunately, there are blawgs out there like SCOTUSblog that have provided some extra information.

Lawyers for the leaders of the U.S. House of Representatives have asked a federal judge in Washington, D.C., to rule that the Justice Department acted unconstitutionally in staging a prolonged search of the congressional office of Rep. William Jefferson, a Louisiana Democrat under investigation on possible bribery charges. On Wednesday, the House's Bipartisan Legal Advisory Group filed a friend-of-court brief in the case in which the congressman is seeking the return of all items taken from his legislative office.

The leaders asked U.S. District Judge Thomas F. Hogan to rule that both the warrant -- issued by Hogan himself -- and the search violated constitutional protection given the House in carrying out its legislative duties. But the leaders did not immediately embrace Jefferson's demand for a return of the papers and computer hard drives gathered up in the 18-hour search of his office overnight on May 20-21.

So much for the "cooling off" period. Maybe the President should withdraw that nicety since the House leadership has decided that it prefers to fight in the court rather than come to a procedural agreement.

In a challenge to Judge Hogan, the House leaders wrote: "It is easy to treat this case, as many in the media and public have, as a simple matter of subjecting Members of Congress to the same laws as everyone else, or bringing an allegedly corrupt Congressman to justice. It is much more difficult to recognize the grave threat the Justice Department's unprecedented actions pose to our tripartite system of government and heretofore remarkably successful system of checks and balances. However, it is essential that this Court do so."

While the Department may have been "well-intentioned," the brief suggested, it is a "dangerous assumption" to trust the Departrment "not to abuse the precedent this case would establish."

This last bit bothers me in that the congress wants special protections that even the president isn't allowed. This Townhall.com op-ed speaks directly to the issue.

The separation of powers does not create a firewall between the branches. They interact all the time. Remember the Supreme Court ordering President Nixon to turn over the tapes? And Congress, if it so chooses, can restrict the jurisdiction of federal appellate courts. To suggest that every time one branch takes action that affects another branch violates the separation of powers principle is an insult to that principle.

I find this action by the House leaders as especially heinous. They screech about the co-equal branches of government, and in the same breath claim special privileges. They had a setup where the executive branch law enforcement party would subpoena documents in a criminal case rather than issue a warrant and seize them. But when one of their own flagrantly ignores the subpoena and action by the other two branches moves beyond the niceties, they get offended. Sorry, if you have an agreement on how law enforcement is going to work for the House, then you had best abide by those agreements. If you can't, then you should not only expect, but should condone the escalation of action.