FBI's Saturday night Capitol Hill raid raises alarms

The unprecedented FBI raid Saturday night of the Rayburn House Office Building office of Rep. William Jefferson, D-La., has stoked tempers on Capitol Hill as some past and present lawmakers and legal experts criticized the Justice Department's actions.

"There is no excuse for the FBI for the first time in history searching a congressional office and apparently doing so in total [dis]regard of due process as it relates to the legislative branch," former Speaker Newt Gingrich, R-Ga., wrote Sunday night in an e-mail to several members and aides obtained by CongressDaily. Gingrich was particularly critical of what he described as the executive branch trampling constitutional lines of authority.

"The president should respond accordingly and should discipline (probably fire) whoever exhibited this extraordinary violation," he wrote. "The protection of the legislative branch from the executive branch's policing powers is a fundamental principle which goes all the way back to the English Civil War," he added, describing the incident as "the most blatant violation of the constitutional separation of powers in my lifetime."

House officials were given short notice of the FBI's intentions Saturday, and neither Jefferson's attorney, Robert Trout, nor the general counsel of the House were allowed to monitor the search, according to the Associated Press. "The government's actions in obtaining a search warrant to search the offices of a United States congressman were outrageous," Trout said in a statement, according to AP. "There were no exigent circumstances necessitating this action."

Charles Tiefer, a law professor at the University of Baltimore who served as solicitor and deputy general counsel of the House for 11 years, said the incident "raises some serious separation of powers questions when extraordinarily harsh and extreme tactics are used on the legislative branch."

During his tenure, Tiefer said the FBI conducted "many successful investigations" of members of Congress without having to resort to raids. "The FBI could have assured the safeguard of these materials just as well by involving the House Sergeant at Arms in the subpoena process," he said.

Tiefer said the raid could set a chilling precedent. "Congress is frequently at odds with the FBI and the Department of Justice and other investigative or security agents working with them," he said. "It must intimidate critical overseers to know that the FBI feels they have the power to seize their file cabinets without even serving a subpoena beforehand."

Jefferson has not been charged with any wrongdoing and maintains his innocence, although he has publicly acknowledged that he could be indicted. Jefferson's claims were not aided by an 83-page affidavit used to justify the raid that states the FBI has videotape of Jefferson accepting a $100,000 cash bribe from an FBI informant, and the cash was later found in his refrigerator during a separate search of his Washington home in August.

Tiefer noted that the incident is somewhat reminiscent of the 1980 Abscam scandal when FBI agents posed as Middle Eastern businessmen to bribe members of Congress in the first major public corruption sting operation that also resulted in accusations of entrapment against the FBI.

"Tactics that seem justified in the individual instance don't seem justified in the long term," said Tiefer, who served as assistant Senate legal counsel during Abscam. House Speaker Dennis Hastert, R-Ill., and Minority Leader Nancy Pelosi, D-Calif., had not released any statement on the raid at presstime.