Not Above the Law

Rep. Ginny Brown-Waite, a low-profile second-term Republican from Florida, last Thursday introduced a resolution repudiating the stand of her leader, Speaker J. Dennis Hastert. It avows that a "Congressional office may be subject to searches and seizures" in an "ongoing criminal investigation" of a House member. It would be hard to find any colleagues who now disagree with her, even though most want to forget the embarrassing subject.

"I didn’t know if I would be getting an office in the basement [after introducing the resolution]," Brown-Waite told this column. Like other lawmakers, she got an earful from constituents during the Memorial Day recess. Voters in her heavily Republican district northeast of Tampa and St. Petersburg, she told me, "were irate" over Hastert’s criticism of the FBI raiding Democratic Rep. William Jefferson’s offices. She found fellow Republican House members also had been "read the riot act" by constituents.

At the same time, the Justice Department and FBI reaction to Hastert’s criticism was arrogant and undisciplined. Senior officials at the White House have not spoken out publicly, but they are appalled by Justice-FBI leaks. Nobody escapes from this episode untarnished, including President George W. Bush’s decision to seal for 45 days the evidence obtained from Jefferson’s office under court approval. Naturally, Republicans prefer to have heard the last of the sorry affair, and that’s what makes the Brown-Waite resolution inconvenient.

Hastert, usually cool, was in a rage in demanding that documents taken from Jefferson’s office in a May 20 Saturday night raid be returned to the congressman. Some of the speaker’s closest associates in the Republican leadership, who do not want to be identified, had urged him to stay away from this issue. But Hastert was strongly influenced by his predecessor as speaker, Newt Gingrich, who opposed the raid on constitutional grounds. While Hastert is now depicted as flying alone, the Associated Press on May 24 reported "Democrats and Republicans together in a rare election-year accord" criticizing the raid.

A closed-door conference of House Republicans, according to participants, split evenly on the issue. Rep. James Sensenbrenner, House Judiciary Committee chairman, led the argument that the raid threatened the Constitution’s prohibition of the executive branch questioning members of Congress on their "speech or debate" in either house. Sensenbrenner convened a hurry-up hearing May 30 in which self-described constitutional scholars claimed violation of the "speech or debate" clause.

Meanwhile, the Bush administration was imploding, with ABC News reporting Hastert is under investigation in the Jack Abramoff scandal. The administration informed the speaker there was no truth to the report, but bitterness continues. A senior White House aide told me he believes the FBI leaked false information about Hastert in retaliation, though the president’s aides are unlikely to pursue this ugly story.

Even more troubling were reports, never officially denied, that Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty threatened to quit if the Jefferson evidence were returned. There is strong feeling among the Capitol Hill Republicans that the two Justice Department officials should have been given their walking papers at that point.

All that preceded the shock Republicans in Congress encountered on recess when outraged constituents told them Congress should not be above the law. That included several members of the speaker’s inner circle, who, after going home, felt Hastert had committed a blunder of far reaching political consequences but still do not want to be quoted. That desire is not shared by Ginny Brown-Waite, a little-known backbencher. After an unproductive meeting with Hastert, she prepared her resolution.

Going into the weekend, Brown-Waite had collected 20 Republican co-sponsors (ranging across the party’s full ideological spectrum) and had not yet circulated it among Democrats. "If anything comes up that I can attach it to, I will," she said. When I asked for the Speaker’s view of the Brown-Waite amendment approving searches of congressional offices, a spokesman said: "We agree with it, and believe it should be done in a constitutional way. We are working on that process." If Hastert had said that a week earlier, he would have saved himself and his party from more embarrassment in a difficult period.