Lawmakers gathered on the House floor Monday evening to vote on veterans benefits, but that's not what caused most of the buzz. Nor was the corruption probe of Rep. William Jefferson (D) of Louisiana the leading topic of conversation.

No. More than reports of videotaped bribery and cash hidden in his home freezer, the scuttlebutt centered on the fact that the FBI had, for the first time, searched a congressional office.

Is Congress missing the point - or is there a serious constitutional issue at stake here?

On Capitol Hill, at least, the constitutional concern runs deep - and across party lines. "When I first saw [reports of the search], I thought: 'Wonder if the federal government needs to be reined in,' " said Rep. Zach Wamp (R) of Tennessee.

Even House Speaker Dennis Hastert weighed in, following what colleagues describe as angry phone calls from his staff to the Justice Department. "The Founding Fathers were very careful to establish in the Constitution a separation of powers to protect Americans against the tyranny of any one branch of government. They were particularly concerned about limiting the power of the Executive Branch," he said in a statement.

"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by members of Congress," he added, noting especially the need to protect "certain legislative branch documents." "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."

Legal analysts locate those protections in Article I, Section 6 of the Constitution, known as the "Speech or Debate" clause, intended to ensure that Congress was not intimidated or controlled by the executive branch. Typically, when there's a subpoena for congressional documents, it goes to the House or Senate legal counsel to make certain that congressional interests are being protected. Otherwise, there's no protection for the executive branch rifling through committee papers, for example.

The Justice Department appeared aware of the potential problem. In a statement on Monday, Attorney General Alberto Gonzales said the FBI had used special procedures to deal with constitutionally protected materials. "I think the executive branch intends to work with the Congress to allay those concerns."

Reportedly, those procedures included the use of a "filter team" to determine whether any of the seized documents were privileged. The team, made up of FBI agents and prosecutors who were independent of the investigation, would keep such documents from being perused. A judge was to rule on any seized documents whose status was in question, according to the affidavit.

Page: 1 | 2