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Raid Was Tipping Point For an Angry Congress
Washington Post
By Peter Baker and Zachary A. Goldfarb
Washington Post Staff Writers
May 28, 2006; Page A04

Whether out of party loyalty or wartime solidarity, the Republican Congress largely deferred to the Republican president for five years as he expanded executive power.

When President Bush set up his own new military justice system for detainees, or invited industry lobbyists to secretly help shape energy policy, or declared he would ignore bills he signed into law if he deemed them out of bounds, Congress stepped aside.

It took federal agents rummaging through file cabinets and computer hard drives inside Congress's own privileged enclave on Capitol Hill to finally rouse the leadership into revolt. The FBI raid on a Democratic congressman's office a week ago may at first have been about the $90,000 in marked bills previously found in his home freezer, but it has quickly morphed into an eruption of resentment born of a dramatic shift in the balance of power during the Bush presidency.

Suddenly, even Bush's chief allies in Congress, House Speaker J. Dennis Hastert (R-Ill.) and Senate Majority Leader Bill Frist (R-Tenn.), were decrying executive overreach and defending the prerogatives of the legislature as an equal branch of government. And in a rare move, they faced Bush down, forcing him to take the extraordinary step of intervening in a criminal case to placate irate lawmakers.

"The administration has been pushing the envelope, and Congress hasn't been doing proper oversight," Rep. Christopher Shays (R-Conn.) said yesterday. "I think some members are going to start to step up to the plate and do more. . . . The executive branch has lost a sense of balance and proportion, and they're just grabbing at everything. And if we were doing more oversight, we might have handled this in a different way."

Yet the protest has exposed Republicans, and Hastert in particular, to Democratic accusations of too-little-too-late hypocrisy. In a letter to the speaker last week, Sen. Charles E. Schumer (D-N.Y.) wrote that "the Republican Congress remained silent when average citizens raised concerns, but as soon as someone in Congress was targeted, the whole story changed."

Bush took office determined to restore what he saw as the lost authority of the executive branch, and he was encouraged by Vice President Cheney, who often talked about how Watergate emasculated the presidency. The terrorist attacks of Sept. 11, 2001, convinced Bush and Cheney that the executive needed to take a strong hand to fight an elusive new enemy, according to aides, and left many lawmakers unwilling to challenge them for fear of undermining the war effort.

"It's unbelievable what they went along with until now -- a strikingly supine reaction to the most aggressive executive in modern America," said Thomas E. Mann, a Brookings Institution scholar. "The willingness to defer to Bush, the Pentagon, Justice Department, you name it, is breathtaking. When it serves the interest of the majority party, fine. When it doesn't, they suddenly discover the Constitution."

Norman J. Ornstein, a scholar at the American Enterprise Institute, coined the phrase "battered Congress syndrome" to describe a Bush-dominated legislature unwilling to do any serious oversight. "Republican leaders in Congress identified themselves as field generals or lieutenants of the president's army," he said.

That began to change late last year -- coincidentally or not, around the time Bush's approval ratings began sliding to record low levels. Congress investigated the administration's botched response to Hurricane Katrina; passed legislation intended to ban torture of detainees, over White House objections; and held hearings on Bush's warrantless surveillance program after it was revealed in the media.

By the time FBI agents showed up at the office of Rep. William J. Jefferson (D-La.) on Saturday evening a week ago, the stage was set for a confrontation. Never before had federal officers raided a congressional office, but the Justice Department figured it had approached the search properly by first obtaining a warrant in the bribery case from a federal judge, timing their visit to keep it low profile and, to avoid the appearance of politics, not informing the White House first.

Accustomed to congressional deference, they were stunned when the situation blew up into a constitutional crisis over separation of powers and Hastert and House Minority Leader Nancy Pelosi (D-Calif.) demanded that Jefferson's files be returned. "The idea of turning criminal evidence back over to a criminal target is just preposterous," said one Justice official, who like others spoke on the condition of anonymity because they were not authorized to speak on the record.

Another law enforcement official noted that Hastert and other lawmakers had strongly supported the Justice Department's aggressive search and surveillance strategies for terrorism investigations. "It's fair to say we would have expected similar support when it comes to public corruption," the official said.

But amid multiple investigations of congressmen, many stemming from the conviction of lobbyist Jack Abramoff, this one struck too close to home. "This is the one that sends them to jail," said Douglas W. Kmiec, a Pepperdine University constitutional law specialist and former Reagan administration lawyer. "They just watched [former Republican Rep.] Duke Cunningham go to jail. There's an investigation of [Rep.] Bob Ney. . . . There are all the peripheral people caught up in the Abramoff matter."

Others rejected the supposition that Republican members saw themselves potentially at risk. "There was a level of contempt in the raid that resonated with members," said Jonathan Turley, a George Washington University law professor.

The situation also became enmeshed in other battles. Hastert, for instance, was angry that Bush forced out his friend, CIA Director Porter J. Goss. House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) -- who has scheduled a Tuesday hearing titled "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?" -- was already fighting the White House on immigration legislation.

In this case, though, Congress found an unlikely ally within the White House for its point of view: Cheney. Although a strong proponent of executive power, Cheney and his staff sided with Hastert concerning the raid. "They're each other's go-to guys," a Republican strategist close to the White House said of Cheney and Hastert. Besides, given the president's political woes, "they need Hastert bad."

But Kmiec said the stakes are even larger than the outcome of the fight over the search. The dispute speaks to the broader balance of power between executive and legislative branches in a time of war, he said, as most exemplified in the debate over the NSA surveillance.

"If the Congress is wrong to pry into the intelligence methods and information that the president is amassing for purposes of protecting us, the consequences of that are we will not be protected," Kmiec said. "If the president is wrong, we will have distorted the protections of privacy and civil liberty for a generation or more, and maybe forever. Those stakes seem to me to be rather dramatic."

Staff writers Dan Eggen and Eric Pianin contributed to this report.

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