What are we to make of the recent FBI raid on the office of Rep. William Jefferson (D-LA), Louisiana's most prominent black politician? Was this exercise Constitutionally sanctioned? Or was it, as a House hearing suggested Tuesday, an unprecedented breach of the Constitution?

An action that pushes the limits of constitutionality should come as no surprise to anyone who has been watching this Justice Department.

And we must set aside - for the moment - any premature judgment as to whether or not Rep. Jefferson is guilty of taking bribes. "Innocent until proven guilty in a court of law" (not the court of public opinion) is the law of the land, even for Congressmen.

What then, do we have? Leadership in both parties in the House are outraged -- the Attorney General is in a complementary snit (I'll resign before returning those files) -- and leadership in the Senate sides with Justice. The President is trying to placate all sides.

Background
Based on news reports, on 20 May (a Saturday) the FBI searched Jefferson's office for 18 hours (overnight), without allowing him or his attorneys to be present. Or without advising House leadership. The rationale for the raid: an allegation that Jefferson was captured on tape accepting a $100,000 bribe in July 2005. [It's almost a year later and they haven't thrown the book at him -- he has not been indicted. Why not? Do the wheels of justice really turn this slowly? Or is the evidence not sufficiently compelling?]

I don't want to make it seem that any bribery is acceptable, but this case pales in comparison to the millions raked in by former Rep. Randy Cunningham (R-CA). And there were no questionable searches of his offices under the cloak of darkness. Nor have there been any questionable searches of offices of other Congressmen (House or Senate side) implicated in the Jack Abramoff scandal.

Responding to criticism, and Congressional hearings, the FBI said Tuesday that Jefferson had not cooperated and had, instread, tried to hide papers when his home was searched.

Issues Involved
The Constitutional issues seem to be these (I'm not a lawyer!). One, the Constitution sets up three branches of government with separate powers. Two, Congressmen (not necessarily their offices) are explicitly protected by something called the "speech and debate" clause of the Constitution: they are "privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same."

The Chicago Tribune reports that House panelists said Tuesday that "[t]he Supreme Court has interpreted the search-and-debate clause as covering the documents lawmakers produce and receive as part of their official work." During the search, the FBI downloaded the contents of computer harddrives.

The Tribune talked to Jonathan Turley, a George Washington University School of Law professor, about the search-and-debate clause and those harddrives:

By taking the hard drive of a member, it's akin in the Framers' day of taking every single piece of paper out of a member's office. If they had went in and removed every single piece of paper, people would not be debating seriously how serious that is. But today, that's exactly what happens when you take a hard drive.

Then there's precedent -- it's never been done before: 219 years ... is the Jefferson case truly that unique or egregious? Remember. He has not been indicted.

Reactions
Most of the commentary that I have read about this has not been written by lawyers. For example, the Houston Chronicle sees no problem with the search, especially since Congress "as done little to stop warrantless surveillance of Americans' communications." The same tone can be seen in the Milwaukee Journel Sentinel op-ed.

Yet a former deputy attorney general under Reagan objects to the action, arguing that the Constitution includes checks and balances for a reason:

And yet, the Bush administration has been bent on a scheme for years of reducing Congress to akin to an extra in a Cecil B. DeMille political extravaganza; signing statements that are the equivalent of line-item vetoes; the assertion of executive privilege to deny Congress any authority to oversee executive branch operations; a claim of inherent presidential authority to flout any statute that he thinks impedes his ability to gather foreign intelligence, whether opening mail, conducting electronic surveillance, breaking and entering or committing torture.

Perkins Coie attorney Bob Bauer writes:

Conducting investigations with some flamboyance, to send a message, is not unheard of in Congressional investigations... 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. (tip)

Bauer also makes my point -- that nothing of this nature occurred during the Abramoff investigations and oh-isn't-it-interesting that the target is a Democrat. He continues, in a later post:

"Corruption" is the easy answer for unease over difficult problems or frustrations over the responsiveness or effectiveness of government. It is a political complaint, presented as a legal charge; and this is the danger of it: that the law will be abused and constitutional balances will be disturbed, because a lot of people are upset, even enraged, and will give up a great deal for the short-term satisfaction of seeing pain inflicted on their elected representatives.

I believe we've heard about the risks of short-term satisfaction before. You know, shortly after 9-11. Before launching a war in Iraq. Dare I quote Franklin?

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. (1759)

If it takes this kind of Executive action to wake up members of the House, I'm here cheering them on. Yes, in my cynical moments I think the Representatives are being self-serving. But maybe, just maybe, they'll wake up to other Administration actions that seem to have as their sole rationale an expansion of power in the Executive branch.

For irony, read this ABC Exclusive about five Chinese men who were imprisoned at Guantanamo for 4.5 years .... and the last year of that time ... our government had agreed that they were innocents. Oh. And we wouldn't let them immigrate here, even though they had ethnic Chinese willing to provide them community. (After all, they are Muslim.) Instead, they're now in Albania. (tip)