A constitutional crisis or a legitimate search?

For those who have missed the big to-do, the FBI search of a Congressman's office last week has kicked up a duststorm between the legislative and executive branches. The Congressman is under investigation for various crimes, including bribery, and the FBI sought and obtained a warrant to search his Capitol Hill office. Legislators are displeased, to say the least.

The controversy comes down to a constitutional clause (Article I, Section VI): members of Congress "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."” The Supreme Court has affirmed that this clause protects a member's documents and files from search and seizure. And in the 219 years under this Constitution, there has never been a search of a member's office.

There's also the fact that the Congressman has not actually been indicted. I'm not a lawyer, but I can seen how that makes the issue a little more sensitive (the FBI still has a court-authorized warrant, however).

But the deeper analysis seems to support the FBI search as legitimate. First, many members of Congress, including Randy "Duke" Cunningham have been arrested and convicted of crimes while sitting in Congress. And the courts have upheld that the constitutional clause above does not shield legislators from criminal prosecution - it's supposed to protect their speech and votes on behalf of their constituents. The real danger in this instance is not the protection of Congressional privilege, but the potential for collateral damage when the representative's files are sifted by FBI agents, potentially imperiling the privacy of innocent third parties.

Ultimately, it seems that the search of the Congressman's office, however unprecedented, is simply the reasonable, court-sanctioned extension of a criminal investigation into a new area. However, as Akhil Reed Amar notes in his Slate article, " even if William Jefferson and his congressional colleagues do not have a winning constitutional argument, the president and his men might do well to tread lightly." Sage advice for the sake of constituent privacy and the peril of waking the sleeping giant in Congress.