FBI Raid Breaches Constitutional Wall Built by the Founders

I was contemplating a July 3 column on the role of procedural politics in the Continental Congresses leading up to our Declaration of Independence when news broke on the unprecedented FBI raid on a House Member's Capitol Hill office. The shock of that news instantly jolted me back to an earlier era of parliamentary history.

On Jan. 4, 1642, King Charles I, with a group of armed men, burst into the British House of Commons to arrest five of his most vocal critics for treason. The king climbed into the Speaker's chair, surveyed the chamber and declared, "I see the birds have flown." He then commanded Speaker William Lenthall to disclose their location. The Speaker reportedly fell to his knees and responded, "May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here."

Fearing for his life, the king fled London, followed by some loyalist members, established an alternative parliament in Oxford and began raising an army. A civil war ensued between the Royalists and Parliamentarians. The Parliamentarians eventually won in 1646 and, two years later, Charles was executed as a traitor.

I was reminded of this incident because it represents an early example of how the rights and privileges of Parliament were violated by the king when he broke into its lower chamber. The privileges and immunities of a legislative body, the principal of which are the freedom from arrest (now largely obsolete) and freedom of speech, date back to that 17th century "Mother of Parliaments." They were established to protect the Parliament against intrusions by the king or others on the body's ability to carry out its business.

Likewise, they were enshrined in the U.S. Constitution to guard against interference by the executive or private citizens with Congress' core lawmaking activities. Under the Speech or Debate Clause of the Constitution, Members are not to be questioned in any other place "for any speech or debate in either house." This protection extends to the legislative acts and papers of Congress and its Members. These privileges are the bulwark of the separation of powers doctrine, though, as James Madison acknowledged in Federalist 48, the wall that separates the branches is a mere "parchment barrier," susceptible to "the encroaching spirit of power."

It is important to recognize that these privileges and immunities vest in a Member only as part of the legislature and not personally. Put another way, they protect Members only in carrying out their official duties and not in conducting personal business. It was not the intention of Parliament or our Founding Fathers to put Members above the law, but rather to protect them, and thus the institution's ability to function, from plundering raids by the crown or executive branch.

As the Supreme Court made clear in the 1979 case U.S. v. Helstoski, the purpose of the Speech or Debate Clause is "to preserve the constitutional structure of separate, coequal, and independent branches of government." The court elaborated: "The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities."

It is that sphere the FBI invaded when it forced Capitol Police to admit its agents to a Member's office at 7:15 p.m. on Saturday, May 20. And it is the breach of that sphere that the U.S. District judge enabled by approving the search warrant. It makes little difference that some "neutral" Justice Department-appointed referees are sifting through the confiscated boxes of documents and hard drives to separate the legislative papers from relevant personal materials.

Any evidence is probably already tainted given the source and manner in which it was obtained — especially when you consider that no legislative branch officials were even permitted to observe what was being taken. One has to wonder what the Justice Department and the court were thinking in breaching that wall of separation in a way never before done in the 217-year history of our tripartite form of government. Could it be that some officials were convinced that Congress is so weakened by the current spate of scandals that it would not dare object to the incursion for fear it would be perceived as protecting wrongdoers? Or is it part of the larger, post-Sept. 11, 2001 mentality permeating the executive branch that anything goes, and the Constitution be damned?

While we cannot read the minds of those responsible for approving this raid on the "people's house," Congress already has begun to call them on the carpet to explain their reasoning (or lack thereof). Speaker Dennis Hastert (R-Ill.) and House Minority Leader Nancy Pelosi (D-Calif.) deserve praise and support for their forceful, nonpartisan defense of the institution against such an outrageous executive branch incursion. Their willingness to challenge this action — in the courts if necessary — is an encouraging sign that institutionalism is not dead and that Congress still has the spine to stand up to the extra-constitutional meanderings of the administration.

There are clear signs President Bush has gotten the message from the united Congressional outcry at this overreach of power and is interested in repairing the breach. The president does not need a Congress united against him in his final two years of office. Yet the actions of May 20 did more to strain mutual trust and respect between the branches. Let us hope the damage is not irreparable and that the two houses on the Hill and the White House may come again to enjoy each others' hospitality — when invited.

Now, maybe, I can get back to thinking about that Independence Day column and what it was that caused the Declaration's signers to break with the crown.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.