Legislators Using Law As Shield In Probes

The problem, defense lawyers and outside experts say, is that their approach directly conflicts with the U.S. Court of Appeals ruling in the Jefferson case.

Before that decision, the speech or debate clause had been interpreted narrowly: If investigators did not disturb Congress's work, their strategies to uncover corruption were fair game. But the Jefferson ruling broadened the definition of "legislative activity." Originally, the provision was meant to protect lawmakers' independence and to shield them from unfair attacks by political or executive branch rivals, scholars say.

"This is the balance that you see trying to be worked out," said Joshua Berman, a former prosecutor who is now a defense lawyer in Washington. "The limits of how far the speech and debate clause goes are going to get played out in the courts."

Meanwhile, Justice Department officials and House and Senate lawyers continue to negotiate investigative steps that FBI agents may take to root out Capitol Hill corruption. The talks began after the Jefferson raid ignited a clash.

Robert Walker, a former federal prosecutor and counsel for the House and Senate ethics panels, said the Jefferson raid, as well as efforts to compel legislative aides to tape conservations with their supervisors, are "extraordinary" steps.

"These are going out toward the edge. In and of themselves they do raise issues central to the speech or debate clause, about whether the tactics themselves are intimidating to the independence of the legislature," Walker said.

"Speech or debate is not an absolute privilege, but the courts have been pretty clear that when it applies, it applies absolutely," said Elliot S. Berke, a former top lawyer for DeLay and onetime House speaker J. Dennis Hastert (R-Ill.).