Saturday Night Search

Thursday, May 25, 2006

THE UPROAR over the FBI's search of Rep. William J. Jefferson's congressional office is understandable but overblown. A demand yesterday by House Speaker J. Dennis Hastert (R-Ill.) and Minority Leader Nancy Pelosi (D-Calif.) that the Justice Department return the papers it seized goes way too far. Constitutional provisions designed to protect lawmakers from fear of political retribution, such as the speech-and-debate clause, counsel restraint and caution in circumstances such as these. They do not transform congressional offices into taxpayer-funded sanctuaries.

No one wants to have FBI agents pawing through lawmakers' files. Prosecutors and agents need to exhaust other avenues of obtaining evidence before doing so. If a search is required, they must take care not to trample on lawmakers' privileged activities.

It's not yet possible to make determinations about whether these principles were followed in the apparently unprecedented search of Mr. Jefferson's office. But the material for which agents searched had been under subpoena for eight months; Mr. Jefferson, a Louisiana Democrat, resisted complying. Under those circumstances, seeking judicial approval for a search warrant is more reasonable. And while the "Saturday night raid," as Mr. Hastert called it, sounds melodramatic, it's less disruptive than having FBI agents in the House during normal business hours.

Mr. Jefferson was, according to the search warrant affidavit, caught with cold, hard cash: Agents videotaped him taking $100,000 in $100 bills from a Northern Virginia investor working undercover and then found $90,000 of it in his freezer. This was no fishing expedition.

Moreover, the affidavit outlines precautions prosecutors took to minimize intrusion on politically sensitive material. A team of agents not previously involved in the case were to go through records to find those listed in the warrant; then, a "filter team" of two lawyers and an FBI agent would examine the documents "to determine if they may fall within the purview of the Speech or Debate Clause privilege." If so, those would be set aside for court review before being shared with prosecutors on the case.

We're not saying that the Justice Department acted perfectly here. It would have been preferable to find some way to consult with congressional leaders before the search. If that wasn't possible, it would have been preferable to seal the office and find a way to consult with House officials and have them present for the search. The "filter team" may not have been the best way to protect congressional prerogatives. Still, lawmakers' high-decibel complaints are unwarranted. The interests of the institution would be better protected by a more measured response.

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