- The Washington Times - Thursday, May 7, 2009

ANALYSIS/OPINION:

Your editorial (“Pelosi confronts justice,” Web, Sunday) criticizing the speaker of the House and the Office of the General Counsel for their recent efforts to continue a long-standing dialogue with the Department of Justice is unwarranted and unfair.

The dialogue and the effort to develop appropriate constitutional protocols for the use of extraordinary law-enforcement tools against members of Congress began under the direction of then-Speaker J. Dennis Hastert, Illinois Republican, at the initiative of my predecessor as general counsel of the House in 2006, just after the Justice Department executed the first search of a member’s office in our history.

In holding the search unconstitutional, a panel of the U.S. Court of Appeals urged the political branches to work out the necessary arrangements to make sure that any future searches were consistent with the speech or debate clause of the Constitution. That provision, deemed essential by the Framers and by the Supreme Court to an independent and robust legislature, ensures that the American people are represented without any intimidation or harassment by the executive branch or its vast and powerful law enforcement machinery. In congressional testimony last year, Attorney General Michael B. Mukasey, who was appointed by former President George W. Bush, specifically endorsed these negotiations.

My recent letter to Attorney General Eric H. Holder Jr. simply requested him to identify negotiating representatives and to continue this good-faith effort to establish procedures to allow all law-enforcement techniques to be used, when warranted, against suspected members in accordance with the requirements of the Constitution, including the speech or debate clause. The letter explicitly made clear that no law-enforcement technique would be off-limits to the Justice Department.

The point of the dialogue is not, as your editorial claimed, “to buffer law makers from federal investigations.” Rather, the focus of our efforts is to ensure that intrusive law-enforcement tools permitted under the Constitution and authorized by Congress - such as judicially authorized searches and wiretaps - are used in a manner that respects the need for a vigorous, independent legislature, including the confidentiality of legitimate legislative communications and records.

Nothing this office has proposed over the last four years (under Republican and Democratic leadership in the House) is intended to or will redound to the benefit of one party over another or has been made with any specific member or members in mind.

IRVIN B. NATHAN

General Counsel

U.S. House of Representatives

Washington

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