We haven't heard much in the last few days about the search of Representative Jefferson's congressional office. Undoubtedly negotiations are underway about what to do with the things seized during the search--they have been placed "under seal"-- and probably there will be some sort of compromise.
But the issue is pretty important, and, depending on the precedent set in this case, it will could certainly come up again. I think the consensus, in the immediate aftermath of the search, was that there was no plausible constitutional basis for the bipartisan outrage over the search of Rep. Jefferson’s office. I don't think I agree with that consensus. I wouldn't say that a Representative's (or Senator's) office should never be searched. But on the other hand it's not just a garden-variety search, and maybe it should be subject to stricter rules. Some thoughts:
1. The question, as I said, shouldn’t be whether the search was absolutely forbidden. It’s too easy to think of cases where we’d want to allow such searches. The real question is whether, as a constitutional matter, it should be harder to justify a search of the office of a member of Congress than it is to justify the search of some other office.
Specifically: perhaps a search like this should be allowed only if the government shows that it was unable to obtain (or is unlikely to be able to obtain) the evidence by a subpoena. In 1978, in Zurcher v. Stanford Daily, the Supreme Court refused to apply such a rule to searches of newspaper offices. (Congress responded by enacting a statute--applicable to the states as well as the U.S.-- that protected newspaper offices from searches. Several states adopted even more protective statutes. More on this below.)
But there are stronger arguments for applying such a rule to the office of a Member of Congress than there are for applying it to the press. Apparently Rep. Jefferson and House lawyers were negotiating over a subpoena when the search took place, so it’s not obvious what the outcome should be if such a rule were applied here. But certainly the Justice Department hasn’t conceded that such a rule applies.
2. It’s true that there’s no obvious basis for this rule in the text of the Constitution. You can’t easily derive such a rule from the language of either the Speech or Debate Clause or the clause protecting members of Congress from arrest in certain (very limited) circumstances. Perhaps such a rule could be imported into the Fourth Amendment requirement that searches be “reasonable,” but that seems like a stretch.
But there are several important, settled separation of powers principles that don’t have any obvious textual basis. Executive privilege is one example. The President’s immunity from damages actions related to his conduct of his office is well established, and it is almost surely based in the Constitution; not only is there no language in the text supporting that immunity, but there is a strong textual argument against it. (Members of Congress are shielded from suit by the Speech or Debate Clause; under the expressio unius canon, that suggests that the President can be sued.) It’s generally agreed that the President cannot be indicted while in office; again there’s no clear textual basis. So it would not be that strange to infer, from the separation of powers (and, perhaps, the implications of the Speech or Debate Clause), that Rep. Jefferson’s office shouldn’t have been searched unless a subpoena would not have worked.
If you’re still not buying: Could a local district attorney order a search of the President’s personal effects, or even his person? (Let’s assume the President is traveling within the prosecutor’s jurisdiction.) I seriously doubt it, but there is no obvious textual barrier in the Constitution—nothing that would provide even the weak inferential protection that the Speech or Debate Clause provides to Rep. Jefferson. Perhaps the President is different, because he embodies a branch of government in the way that a single member of Congress does not. But wouldn’t we also be a little queasy if the FBI searched the chambers of a Supreme Court Justice? Apparently there have been searches of the chambers of lower court judges, and that precedent goes against the position I'm suggesting. But then again perhaps lower court judges are distinguishable since their offices are created by legislation, not by the Constitution.
3. You shouldn’t think that a Member of Congress, or any of the rest of us, can avoid a search just by not breaking the law. For one thing, the standard for reasonableness in this context would be probable cause, which, whatever it means exactly, will include a substantial number of false positives. Warrants are issued after ex parte proceedings, which increases the risk of false positives. More important, though, you do not have to be guilty of anything to be subject to a search. It is enough if there is probable cause to believe that evidence will be found on your premises.
So, to take the case that obviously comes to mind, if it is a crime for government employees to leak classified information, and the Department of Justice can convince a judge, in an ex parte proceeding, that leaked information might be in a Senator’s files, then, unless there’s some special rule, the FBI could search the files. It could do so even if the Senator were innocent of any wrongdoing.
4. Why have a rule that protects congressional offices? There are two main reasons. The first is that a search is extremely intrusive. The physical intrusion and disruption are bad enough. Beyond that, if the search is for papers or computer files, the law enforcement agents will, in almost every case, have to look at an enormous number of documents besides those they are authorized to seize, just to make sure they’ve gotten everything. Members of Congress, whose position makes them potential adversaries to the executive branch—that’s the whole idea behind the constitutional separation of powers—can have lots of legitimate reasons not to want agents reading their papers.
The second reason, even more important, is that citizens communicate with Senators and Representatives—that’s also a core constitutional idea—and a search will allow the executive branch to look at those communications. The risk of that happening might be enough to deter people from communicating with members of Congress at all.
I don’t think this argument is far-fetched. It doesn’t seem impossible that some potential leakers will now think twice about leaking to a member of Congress after the raid on Rep. Jefferson’s office. (Let’s assume that it’s not certain that we want to prevent the leaks.) You can also imagine a maverick member of Congress, unpopular not just with the executive but with most of the other members, who serves as a focal point for dissent on, say, a war. A search of that member’s office could be an effective way of both harassing the member and discouraging citizens who would seek him or her out, thus limiting the Representative’s ability to rally opposition to the government.
Notice that the requirement that the government first use a subpoena mitigates these problems. A subpoena allows the government to see the papers it is legitimately entitled to seek, but, in contrast to a search, it prevents the government from going through all the other papers to find them. So, to continue the hypothetical, illegally leaked material would be subject to a subpoena, but other communications would not be.
5. Maybe the best answer is a statutory fix, which is what happened after Zurcher: Congress could protect its members by legislation; if it doesn’t, that’s a sign that there’s not really a problem. Maybe, but again I’m a little skeptical. A member of Congress who voted for such a statute would be easy to attack (“they’re putting themselves above the law”), so my guess is that Congress wouldn’t do it, even if it were in the public interest. We don’t think that the Speech or Debate Clause is an unnecessary or unwise provision, or one that should be interpreted very narrowly, just because most (maybe all) of its protections could also be legislated.
So I don’t think Representatives Hastert and Pelosi were obviously right to say that this search was unconstitutional, but they weren’t obviously wrong either.