The House's Bipartisan Legal Advisory Group filed a friend-of-court brief in the case in which the congressman is seeking the return of all items taken from his legislative office. Its bottom line is that the search wrongly seized -- when it was not even necessary to obtain a conviction -- constitutionally privileged materials without even providing a legislative filter. The brief was clothed in separation of powers rhetoric and basically begged the judge to take it seriously:
It is easy to treat this case, as many in the media and public have, as a simple matter of subjecting Members of Congress to the same laws as everyone else, or bringing an allegedly corrupt Congressman to justice. It is much more difficult to recognize the grave threat the Justice Department's unprecedented actions pose to our tripartite system of government and heretofore remarkably successful system of checks and balances. However, it is essential that this Court do so.
It makes some good points though obviously is probably a bit too one-sided (well duh, right?). My bottom line was not necessarily that Congress had no case though talk underlined that Jefferson refused to willingly submit the documents (let's say the truth is in the middle) and there was some procedural safeguards (judicial oversight and some limits on executive discretion). I later added that if the legislature also should have a role, fine, but Congress was being rather selective in its concern for its privileges.
But, the executive did seem to cross the line here, if arguably in a harmless fashion, especially relatively speaking. So, I would support the brief's position overall -- you should be particularly careful when dealing with legislative papers, especially when an alternative to this vacuum approach is surely available. In fact, the lack of need was addressed even by some who weren't really upset at the move. Thus, especially given this White House, Mark Kleiman wasn't totally off base to worry about the search.
It just was that he relied on legislative self-control that simply did not exist, so went to the other extreme in a fashion. Perspective is needed here, and "nothing happened" is not the proper alternative to "bloody murder." Now, if the matter is put in proper context, and some have consistently opposed the move along with other executive overreaching, perhaps the end result will be positive.
And, who knows? Maybe, Rep. Jefferson will also get the punishment he deserves.