Yesterday we did this post about bipartisan and particularly Republican Congressional outrage due to an FBI search of a Democratic lawmaker’s office.
The New York Times now has a report that echoes some of the observations and predictions we made in that post and others on this site. What’s new: a top Republican leader personally expressed his ire to President George Bush — and Republicans are predicting the issue could go all the way to the Supreme Court:
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.
And here’s the new twist: it may be the Republican White House against the Republican Congress in the Supreme Court:
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.
We have consistently noted here that the modus operandi of this administration is to expand its powers by simply “doing” — acting swiftly to assert powers that the conventional wisdom assumed it didn’t have or wouldn’t assert — then justifying the actions by interpreting laws far different previous Republican and Democratic administrations. MORE:
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.”
According to the Times, this has begun to raise more than eyebrows among many Republicans: it has raised genuine concerns about the path upon which this government is treading:
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.
So the the stage is set for Congressional Republicans to battle what they see as the encroachment of Big Executive Government that is being spearheaded by a Republican administration.
It seems to be a battle over not just about defining and protecting separation of powers but over what the meaning of the word “conservatism” is today.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.