DEBORAH AMOS, host:
Back in Washington, the investigation of Mark Foley's conduct is now gathering steam. The Justice Department has sent a letter to the House of Representatives asking lawyers there to preserve documents in Foley's office. House officials have already agreed to change the locks at his office and bar Foley from any remote access to his computer. His staff has been warned not to shred or delete any documents.
If federal investigators search Foley's office, that could reopen a heated debate over separations of powers. NPR's Ari Shapiro reports.
ARI SHAPIRO: Last May, the FBI searched a congressman's office for the first time ever. The target of the investigation was Democratic Congressman William Jefferson; he was accused of bribery. When House leaders learned that the FBI had searched Jefferson's office without notifying any members of Congress, they became very angry. House Speaker Dennis Hastert was one of the most vocal defenders of legislative privilege.
Representative DENNIS HASTERT (Republican, Illinois, House Speaker): What we want to do is not protect people who broke the law, but we need to protect the division of powers in the Constitution of the United States. And that's one of the things I talked to the president about. That's one of the things that we're concerned about in this issue, and that's an ongoing discussion that we have.
SHAPIRO: According to Hastert's argument, the Constitution forbids members of the Executive Branch, such as the FBI, from rifling through materials that relate to the work of the Legislative Branch, such as a congressman's files. The courts didn't see it that way. First, a trial judge said the FBI raid was completely legitimate. And then an appeals court said Congressman Jefferson could choose documents he thinks are protected by legislative privilege and ask a judge to withhold them from investigators.
Now former Representative Mark Foley presents a new congressional scandal. The allegations are about sex, not money, and the alleged defender is a Republican not a Democrat. But the Justice Department has asked House lawyers to preserve materials in Foley's office, which leaves open the possibility that there will be another search and more drama.
Bruce Fein worked in the Justice Department during Republican administrations and he's testified before Congress on these issues.
Mr. BRUCE FEIN (Former Justice Department Attorney): The Foley case really is a carbon copy of Jefferson, except that it seems that it's the e-mails on his laptop from his office that are to be examined. And, of course, the only way you know whether all of the e-mails have been adequately surveyed is to look at all of the e-mail. Because until you read them, you don't know whether it's incriminating.
SHAPIRO: A Justice Department official, speaking on condition of anonymity, said Justice lawyers are working with House lawyers to figure out how a search of Foley's office might be undertaken. They want to work out a scheme that can apply not only to the Foley case but to any searches that might be necessary in the future.
Even if the Justice Department were not willing to cooperate, UCLA law Professor Eugene Volokh says congressional leaders may be less inclined to go to the mat for Foley than they were for Jefferson.
Professor EUGENE VOLOKH (UCLA School of Law): The conduct here is even more unpleasant and even more likely to arouse public revulsion. So perhaps because of that, Congress would be less likely to speak up for Senator Foley.
SHAPIRO: And what's more, the courts were not very sympathetic to the legislative privilege argument, and that could make Congress even less likely to take that position again.
NPR called speaker Hastert's office to see if he'd respond to a search of Foley's office the same way he did to the Jefferson raid. His spokespeople did not return our calls.
Ari Shapiro, NPR News, Washington.
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