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House Holds Hearing on Executive Branch Powers

STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. I'm Steve Inskeep. Good morning.

President Bush may have made a conciliatory gesture, but members of the House are still furious over the FBI search of a Congressman's office. The House Judiciary Committee ignored its own recess week off and held a hearing yesterday with the title, Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution? That's their title.

Even as the committee met, the Justice Department was submitting new court briefs defending that search, as NPR's Ari Shapiro reports.

ARI SHAPIRO reporting:

Who says members of Congress can't all get on the same page?

Representative JOHN CONYERS (Democrat, Michigan): Members of Congress are not above the law.

Representative ROBERT SCOTT (Democrat, Virginia): We have to begin this discussion with the premise that no one is above the law.

Representative LOUIS GOHMERT (Republican, Texas): Certainly, they're not above the law here in Congress.

Representative DARRYL ISSA (Republican, California): No one is above the law.

SHAPIRO: That was the consistent message yesterday from Congressman John Conyers of Michigan and Robert Scott of Virginia, both Democrats; as well as Louis Gohmert of Texas and Darryl Issa of California, both Republicans.

They all wanted to be clear that they were not defending Congressman William Jefferson, who's accused of taking $100,000 in bribes. Instead, Committee Chairman James Sensenbrenner of Wisconsin said their mission is defending the Constitution.

Representative JAMES SENSENBRENNER (Chairman, House Judiciary Committee; Republican, Wisconsin): A Constitutional question is raised when communications between members of Congress and their constituents, documents having nothing whatsoever to do with any crime, are seized by the Executive Branch without constitutional authority.

SHAPIRO: The Committee was nearly unanimous, saying the Executive Branch violated the separation of powers when it seized papers and a computer hard drive from a Congressman's office for the first time in history. Last week, in an effort to placate lawmakers, President Bush sealed all of those files for 45 days.

The Justice Department defended itself in a court brief submitted yesterday. It quotes Supreme Court opinion that says, "The laws of this country allow no place of employment as a sanctuary for crime." The brief also says the government will let Congressman Jefferson review the seized documents before they're given to prosecutors. That gives him a chance to challenge specific seizures in court, if he thinks investigators are handing over privileged communications.

But the government's offer does not satisfy Bruce Fein, who worked in Congress and the Justice Department of President Reagan in the 1980s. He was a witness at yesterday's hearing.

Attorney BRUCE FEIN (Constitutional Lawyer and International Consultant, Bruce Fein & Associates, the Lichfield Group): This latest use of a search warrant by the Executive Branch to rummage through the files of a member's office is simply an additional instrument of the Bush Administration to cow Congress.

SHAPIRO: He said this administration has a pattern of overreaching. He cited torture policy, domestic surveillance, presidential signing statements and sweeping claims of executive authority as other examples.

Former Congressman Robert Walker, who also testified at the hearing, referred to the congressional office building named after former Speaker Sam Rayburn, as he warned Congress to fear the worst and play hardball in defense of its prerogatives.

Mr. ROBERT WALKER (Former Pennsylvania Congressman): If the Rayburn raid was a precedent for coming attractions and intimidating tactics, the way Congress responds initially must be improved.

SHAPIRO: The fear of what Walker called coming attractions may partly explain this Congressional fervor. The Justice Department has a corruption taskforce that's become more aggressive about probing Congress. The Jack Abramoff lobbying investigation is growing, and Walker said the Justice Department is trying to redefine certain kinds of campaign contributions as bribes.

Mr. WALKER: Will we then have a wave of raids on Capitol Hill to look at member's records, to find out whether or not they have taken campaign contributions that relate to their legislative duties? If this precedent is allowed to stand, it seems to me that that's a danger going forward.

SHAPIRO: Committee members and witnesses said there were ways the Justice Department could have conducted the search without offending the separation of powers.

Jonathan Turley is a law professor at George Washington University who said he was shocked when the FBI refused to let a lawyer for the Congress itself witness the search of Jefferson's office.

Professor JONATHAN TURLEY (Professor of Law, George Washington University): When the House general counsel said, can I be present to witness the search, she was actually suggesting something that would have been of great benefit to the Executive Branch. And it really does cross over into raw arrogance to tell such a legislative official, we won't even let you stand in the office.

SHAPIRO: Now, members of Congress want to know why investigators thought it necessary to carry out such an extraordinary raid in this instance. Committee Chairman James Sensenbrenner said he'll convene another hearing so the attorney general and the FBI director can answer that question.

He also announced plans to develop legislation on the subject.

Rep. SENSENBRENNER: I think that we want to make sure that when the next Congressman is investigated for illegal activity, that the procedure done by the Justice Department is right. So I think this law will help the Justice Department get it right next time, because they didn't get it right this time.

SHAPIRO: And as a sign of how hot the anger remains in the president's own party, Republican Congressman Darrell Issa, of California, noted that if the Justice Department decides not to cooperate in this effort, Congress does have the authority to impeach the attorney general.

Ari Shapiro, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.