The US House of Representative leaders have conceded that the FBI that have the right to search Congressial offices with a court-issued warrant. However, they have instructed House lawyers to come up with protocols for such a search within the 45 days that the seized records are sealed for.

I think that this is a good solution. Congress does need to assert its right to work independently of the executive, yet at the same time cannot be a haven for criminal activity. In some circumstances the FBI needs the right to search, but this must be done in a constitutionally acceptable way.

It will be interesting to see what protocols that they come up with. I'd suggest something like the following for a first cut:

1) The FBI (or any agency executing a warrant at the Capitol) must notify the Congressial leadership (i.e. the Speaker, the House majority and minority leaders, and the Senate majority and minority leaders) that they intend to seek such a warrant and on what grounds.

2) The congressial leadership may then either oppose the warrant before the judge issuing it, or waive their right to oppose it.

3) If the warrant is issued and the leadership waived their right to oppose, then it can be executed immediately.

4) If the warrant is issued but was opposed, then it cannot be executed for 48 hours, allowing time for it to be overturned by Congress by a 3/5ths majority in both houses.

5) The warrant must be executed in the presense of House lawyers to ensure that only those papers specifically relating to the warrant are searched.

Obviously there are some problems with these (e.g. if the FBI wants to search the office of one of the leadership, and step 4 is quite possibly unconstitutional as it gives a quasi-judicial power to Congress). However, the principles here are that the Congressial leadership is informed about the warrant in advance, and given the opportunity to oppose it if it appears to cause constitutional difficulties. An informal agreement (leaving out step 4) would probably be acceptable, as Congress can still cause problems for the FBI in other ways if they are breaching the agreement.

Posted by Dave Bryant at 1:16 PM | Comments (0) | TrackBacks (0)