F.B.I. Raid Divides G.O.P. Lawmakers and White House

The New York Times
F.B.I. Raid Divides G.O.P. Lawmakers and White House
By CARL HULSE

WASHINGTON, May 23 — After years of quietly acceding to the Bush administration's assertions of executive power, the Republican-led Congress hit a limit this weekend.

Resentment boiled among senior Republicans for a second day on Tuesday after a team of warrant-bearing agents from the Federal Bureau of Investigation turned up at a closed House office building on Saturday evening, demanded entry to the office of a lawmaker and spent the night going through his files.

The episode prompted cries of constitutional foul from Republicans — even though the lawmaker in question, Representative William J. Jefferson of Louisiana, is a Democrat whose involvement in a bribery case has made him an obvious partisan political target.

Speaker J. Dennis Hastert raised the issue personally with President Bush on Tuesday. The Senate Rules Committee is examining the episode.

Representative John A. Boehner of Ohio, the House majority leader, predicted that the separation-of-powers conflict would go to the Supreme Court. "I have to believe at the end of the day it is going to end up across the street," Mr. Boehner told reporters gathered in his conference room, which looks out on the Capitol plaza and the court building.

A court challenge would place all three branches of government in the fray over whether the obscure "speech and debate" clause of the Constitution, which offers some legal immunity for lawmakers in the conduct of their official duties, could be interpreted to prohibit a search by the executive branch on Congressional property.

Lawmakers and outside analysts said that while the execution of a warrant on a Congressional office might be surprising — this appears to be the first time it has happened — it fit the Bush administration's pattern of asserting broad executive authority, sometimes at the expense of the legislative and judicial branches.

Pursuing a course advocated by Vice President Dick Cheney, the administration has sought to establish primacy on domestic and foreign policy, not infrequently keeping much of Congress out of the loop unless forced to consult.

"It is consistent with a unilateral approach to the use of authority in Washington, D.C.," Philip J. Cooper, a professor at Portland State University who has studied the administration's approach to executive power, said of the search.

"This administration," Dr. Cooper said, "has very systematically and from the beginning acted in a way to interpret its executive powers as broadly as possible and to interpret the power of Congress as narrowly as possible as compared to the executive."

Some Republicans agreed privately that the search was in line with what they saw as the philosophy of the Justice Department in the Bush administration. They said the department had often pushed the limits on legal interpretations involving issues like the treatment of terrorism detainees and surveillance.

Republicans may have a potential self-interest beyond defending the institutional prerogatives of the legislative branch. With some of the party's own lawmakers and aides under scrutiny in corruption inquiries tied to the lobbyist Jack Abramoff and the former lawmaker Randy Cunningham, Republicans would no doubt like to head off the possibility of embarrassing searches of their members' offices.

But lawmakers of both parties said they had no interest in protecting criminal activities or Mr. Jefferson. Their fear, they said, is that the search set a dangerous precedent that could be used by future administrations to intimidate or harass a supposedly coequal branch of the government.

"No member is above the law, but the institution has a right to protect itself against the executive department going into our offices," said Representative Steny H. Hoyer of Maryland, the No. 2 Democrat in the House. "We all have in our offices information, letters, correspondence, speeches, etc., that we have written, some of which we may have given to the public, put on the public record, some may not be, which is confidential information, just as the White House has confidential information."

Mr. Hoyer and other Congressional leaders said they were uncertain of what their legal or procedural response might be, though several said a "protocol" for carrying out such a search should be worked out between the Justice Department and Congress. Such an arrangement could cover things like prior consultation with leaders or other notice, how the search would be conducted, who would be present and other details.

"I think it is necessary for us to assert our own prerogatives," said Representative Eric Cantor of Virginia, the deputy Republican whip.

There is no sign that Congressional Republicans' discontent over this particular matter may spread into a more general challenge to the administration's expansive view of executive authority. But the friction has underscored the growing willingness of Republicans on Capitol Hill to distance themselves from the administration at a time when Mr. Bush's poll numbers are touching new lows, prompting the White House to try to repair relations with Congress.

At the Justice Department, Attorney General Alberto R. Gonzales sought to smooth ruffled Congressional feathers. Mr. Gonzales said that private discussions were taking place to resolve the dispute and that he and his agency "have a great deal of respect for the Congress as a co-equal branch of government."

He and other officials suggested that the search had been made necessary by a lack of response to an earlier subpoena. "We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists," Mr. Gonzales said.

Members of Congress are mindful that much of the public is not familiar with the speech and debate clause, which, among other things, requires that lawmakers be "privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." Many people may wonder why a Congressional office cannot be searched in a criminal case and what members of Congress are complaining about.

To many lawmakers, that is secondary to the larger separation-of-powers principle they see at risk.

"I clearly have serious concerns about what happened," Mr. Boehner said, "and whether the people at the Justice Department have looked at the Constitution."