Hubris, Interrupted

I first saw this story break yesterday:

President Bush ordered the Justice Department yesterday to seal records seized from the Capitol Hill office of a Democratic congressman, representing a remarkable intervention by the nation's chief executive into an ongoing criminal probe of alleged corruption.

The order was aimed at quelling an escalating constitutional confrontation between the Justice Department and the House, where Republican and Democratic leaders have demanded that the FBI return documents and copies of computer files seized from the office of Rep. William J. Jefferson (D-La.).

In a six-paragraph statement, Bush cast the dispute in historic terms and said he issued the order to give Justice Department officials and lawmakers more time to negotiate a compromise. "Our government has not faced such a dilemma in more than two centuries," Bush said. "Yet after days of discussions, it is clear these differences will require more time to be worked out."

The order capped five days of tumultuous negotiations involving the White House, the Justice Department and House Speaker J. Dennis Hastert (R-Ill.), who denounced the Saturday-night raid as an infringement on the separation of powers between the legislative and executive branches and had joined Minority Leader Nancy Pelosi (D-Calif.) in demanding that the seized documents be returned.

I resisted the urge to make an immediate comment on this, and instead decided to sleep on it and mull things over. Now that I have, think I like the President's intervention even less.

I first noted on Wednesday and much more qualified experts have confirmed, there is no apparent validity at all to the argument by legislators that they have some sort of Constitutional protection from their offices being searched.

Congressional offices have no special protections under the Fourth Amendment compared to other offices, and the FBI did get a duly sworn search warrant from a federal judge. Nor does the Speech or Debate clause seem to be even an plausible impediment to the execution of a search warrant.

No, the more I look at the President's decision to intercede in this case by impounding the seized documents for a 45-day period, the more I dislike his decision.

There was no compelling legal reason that I can ascertain for the President to intercede in this matter, even though he has the apparent power to do so. Attorney General Alberto Gonzalez, the Justice Department, and the Federal Bureau of Investigation went well beyond the legal standard in their search of Jefferson's Congressional office, perhaps to the point of showing too much deference to his status as a congressman.

No, the "reasoning" here is purely political in nature, as Bush as paused (but not stopped) the investigation so that Denny Hastert and the rest of the Republican leadership can pull their heads out of their collective… well you know.

From this perspective, President Bush overreached, using the power of the Executive to interrupt the Legislative branch's constitutional right to make complete fools of themselves by continuing to exhibit such constitutionally ignorant, publically repellant and arrogant behavior.

The great casualty in Bush's intercession is some much-needed congressional hubris.