Brazen example

Law | As debate mounts over an FBI raid on a legislator's office, some legal scholars question President Bush's unprecedented intervention

Issue: "Bird flu," June 10, 2006

One of the boldest of President Richard Nixon's bold acts during the Watergate imbroglio was to interfere with an ongoing criminal investigation (ultimately of himself) by firing the special prosecutor, who had subpoenaed the infamous presidential audiotapes.

When Nixon's attorney general, Elliot Richardson, protested the firing, Nixon forced him to resign, with the deputy attorney general following on his heels. When the dust cleared from the "Saturday night massacre," as reporters called it, Nixon had dismissed the prosecutor, but his entire administration was on its head.

President Bush had different motives when he intervened last Thursday with a 45-day "cooling-off" period in the ongoing Justice Department investigation of bribery involving a U.S. congressman, but he may have paved the way for Nixonian comparisons. Especially in light of this: Preceding, possibly prompting, President Bush's call for the month-and-a-half delay were threats of resignation from his own attorney general, Alberto Gonzales, deputy attorney general, Paul McNulty, and even FBI director Robert Mueller.

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The delay, the president said, provides time for tempers to cool in what has become a constitutional standoff between the executive branch and the House. Those tempers first flared when the FBI searched the office of Rep. William Jefferson, whom the Justice Department accuses of taking bribes after the FBI videotaped Mr. Jefferson taking $100,000 in bribe money from an informant and found $90,000 of it in his freezer. It was the first-ever search of a legislator's office, and the bureau took several Chinese-wall-styled precautions against tainting the operation. But House leaders in both parties cried foul on constitutional grounds, arguing that the Constitution's Speech and Debate Clause protects congressional offices from such searches.

In a week that was supposed to be celebratory for House Speaker Dennis Hastert (who became the longest-serving GOP speaker in history on June 1), his angry presence instead dominated coverage of the issue. He and his counterpart, Minority Leader Nancy Pelosi, appeared in a rare joint press conference to denounce the raid, and members at a special House hearing convened May 30 by Rep. James Sensenbrenner said they had the authority to impeach Attorney General Gonzales. Defying House leaders, the Senate leadership emerged to support the executive branch.

None of this thrilled conservatives. Rather than Speaker Hastert's "defense of the enemy," conservatives wanted public ignominy for Democrats who have made crusading against GOP corruption the theme of their campaign to regain control of Capitol Hill. On the other hand, some Democrats were wondering: Do the tentacles of corruption extend to the speaker or other Republicans who could hide behind their defense of Rep. Jefferson?

With questions like those and constitutional debates swirling around the controversy, the din from the FBI search has drowned out the relative murmur about the measure taken by the president to step in and seal the documents. But calling Mr. Bush's intervention in the investigation everything from "inadvisable" to part and parcel for "a banana republic," critics of the president's response say the 45-day delay is the real issue-that it crosses into dangerous territory and, inadvertently or not, sets a brazen example.

"What's going to happen when the president's friend, 'Bob,' gets into legal trouble?" constitutional law professor Mary Cheh asks theoretically. Ms. Cheh, who teaches at George Washington University, describes a situation where a president could use this newly claimed executive power to meddle in the criminal justice system virtually at any level or time-a preemptive pardon power, if he wanted it.

"As a constitutional matter, of course, the president sits atop the executive branch," Ms. Cheh concedes. "But," she continues, "President Bush hasn't been delegated the power to make line decisions on specific cases by Congress."

Jerome Barron, a constitutional law professor also at George Washington University, says that "this is the sort of thing you get in a banana republic," not the United States: "It is very unusual-I would say unprecedented-and perhaps inadvisable, for President Bush to interfere. The appropriate thing to do would be for those in Congress who object, since the FBI subpoena was authorized in court, to go challenge it in court." Mr. Barron, who was a Senate consultant on the Watergate affair, says the separation-of-powers issue "is in more expert hands in the judiciary than in the executive branch."

Other legal scholars also recognize the uniqueness of the president's move to inject himself into an ongoing investigation, but opinions diverge on what it actually means. UCLA law professor Eugene Volokh says the word precedent may be misleading, since he feels there is no danger in President Bush's move itself. "Don't think of it as a precedent," Mr. Volokh says. "The 45-day delay is Bush's way of taking a hot controversy and cooling it down."


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