Hastert, Jefferson and a Federal Case

A constitutional crisis may be bubbling in Washington, where the search of a congressional office last week has lawmakers questioning the Executive Branch's limits. NPR's Melissa Block talks with Akhil Reed Amar, professor of law and political science at Yale University. Professor Amar is writing on the issue for Slate.

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MELISSA BLOCK, host:

In his statement today, President Bush said our country has not faced such a dilemma in more than two centuries. Tradition has been that Congressional offices are exempt from such searches. The FBI had never before carried out a search warrant on the Congressional office of a sitting lawmaker. And all this raises questions about the separation of powers.

Professor Akhil Amar of Yale Law School has been looking at the Constitution and pertinent case law on this matter.

Mr. AKHIL AMAR (Yale University): In theory, basically, unless there's some sort of special immunity, we're all subject to being searched in various contexts. And so, really, there's apparently a criminal investigation going on and just as with any other person being criminally investigated, Jefferson is subject to being searched with a warrant. That's the administration's position. Just, the rules that apply to him are the same as the rules that apply to you or to me.

BLOCK: Congresspeople who are protesting this, including the leadership, point to Article 1 of the Constitution and say that that's what protects us here. What is in Article 1? What does it say?

Mr. AMAR: Well, there are two main provisions. One that insulates members of Congress from certain kinds of arrest, but that really doesn't apply because the arrests are civil cases and not criminal cases. And then they say, well, there's this thing called the speech and debate clause, and members of Congress are privileged for speech and debate.

And the problem with that is this really isn't a prosecution of Jefferson for something that he said on the floor, for some speech that he made, some debate that he was engaged in. So Article 1 is really a kind of Congressional free speech clause and the president would say this isn't about speech. This is about a search pursuant to a criminal investigation.

BLOCK: You know, there was an editorial in the Washington Post on this today before this latest development saying that the raid on Congressman Jefferson's office was not an outrage and the editorial writer wrote this, “The constitutional provisions do not transform Congressional offices into taxpayer-funded sanctuaries.”

Mr. AMAR: And the argument is, why should members of Congress have any special privileges over the rest of us? And one counters, maybe the rest of us deserve a little bit more protection. Newspaper offices often have secrets of other people in them. Suppose an attorney is the subject of an investigation. He's a target, but if you go into that attorney's office you're going to find all sorts of other people's confidential information unrelated to any possible crime. So maybe we need to rethink the rules generally about certain kinds of white-collar office searches.

BLOCK: It's not just obviously the legislative and executive branches at play here. There was a judge who signed off on this warrant. The FBI agents didn't just go in on their own. A judge said okay, go ahead and do that.

Mr. AMAR: And that's one reason why it may be hard for Jefferson to win in court is that a court really had authorized this. And one thing that maybe needs to be done in the future, and maybe we need a new statute, is a set of rules creating more protection than merely the warrant.

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