House Speaker Nancy Pelosi is working to buffer lawmakers from federal investigators. This is a bad idea. Special legal protections for politicians encourage unethical conduct.
Irvin B. Nathan, general counsel of the House of Representatives, sent a letter to Attorney General Eric H. Holder Jr. on Monday about establishing a protocol on how to handle "hopefully rare searches and electronic surveillance involving members of Congress." Mr. Nathan previously failed to negotiate such an agreement with the George W. Bush administration when Republicans controlled the House. His return to this effort isn't surprising given the number of congressional Democrats facing accusations of ethical misconduct.
Democrats facing scrutiny include the chairman of the House Appropriations Subcommittee on Defense, John P. Murtha of Pennsylvania, for his close ties to the defense lobby firm PMA Group, which is under federal investigation; House Ways and Means Chairman Charles B. Rangel of New York about a number of tax issues; Rep. Jesse L. Jackson Jr. of Illinois over his reported effort to persuade ousted Illinois Gov. Rod R. Blagojevich to appoint him to fill President Obama's former Senate seat; and Rep. Jane Harman of California, who reportedly was taped in 2005 by the National Security Agency purportedly agreeing to help seek leniency for two accused Israeli spies in exchange for help in lobbying her appointment to chair the House Intelligence Committee.
Mrs. Pelosi, California Democrat, on Thursday invoked the separation of powers as justification for the move. Mrs. Pelosi, who has acknowledged being aware previously of Mrs. Harman's controversial dialogue, claims the stance is a matter of principle. "Whether it's invading an office or wiretapping a conversation, it's important for us to have the separation of powers and the respect for individual liberties, again, while not harboring information that would be useful under the speech [or] debate clause," she said.
The speech or debate clause of the U.S. Constitution states that "for any Speech or Debate in either House, [lawmakers] shall not be questioned in any other Place." The Supreme Court limited the scope of the provisions in 1972's United States v. Brewster to actions that are an integral part of "the due functioning of the legislative process." When there is controversy over how to implement this principle, the U.S. Court of Appeals for the District of Columbia endorses having the legislative and executive branches hash out their differences.
In 2007, the Court of Appeals found that searching then-Rep. William J. Jefferson's office was not inherently unconstitutional but that FBI agents had crossed the line by viewing every record in the Louisiana Democrat's office. The court stated that "the core activity protected by the Clause - speech in either chamber of the Congress - is a public act. In essence, therefore, what the Clause promotes is the Member's ability to be open in debate - free from interference or restriction - rather than any secrecy right."
There is a long history of self-serving efforts to protect congressional privilege in the face of ethical scandals despite the clear limits set by the courts. The speaker's spokesman told us that negotiations with the Department of Justice are simply intended to clarify what is appropriate in terms of notifying members about searches and tapped conversations. "Members can't expect sanctuary in their offices," he added. We agree, but Mrs. Pelosi's effort makes it appear as if that is exactly what she is seeking. No deal should give lawmakers leniency from federal officers investigating corruption on Capitol Hill.