Bush seals papers FBI seized in House raid

WASHINGTON -- President Bush yesterday ordered records seized by the FBI during last Saturday's raid of a congressman's office to be sealed for 45 days, hoping to avert a court battle over separation of powers.

Bush acted in response to House Speaker Dennis Hastert, who has said the raid was an unconstitutional intrusion of the executive branch into a congressional office and has demanded that the papers be returned.

Hastert, meanwhile, angrily denied that he, too, is the subject of a federal probe, demanding that ABC News retract a report that he was ``in the mix" of a Justice Department investigation of disgraced former lobbyist Jack Abramoff. Hastert said the Justice Department leaked the story to the network to intimidate him after he criticized the FBI raid.

The network stood by the report.

The chain of events was set in motion on Saturday, when the FBI raided the congressional office of Representative William Jefferson, a Louisiana Democrat. The unprecedented FBI raid was backed by a warrant, and court filings said that Jefferson had taken a $100,000 bribe.

The raid prompted Hastert and House minority leader Nancy Pelosi to issue an unusual bipartisan statement on Wednesday saying that, despite obtaining the warrant, the FBI had violated the separation of powers. Hastert and Pelosi demanded the return of Jefferson's papers.

With the two leaders refusing to back down yesterday, the stage was being set for a possible landmark court battle over separation of powers that legal scholars said would be analogous to President Nixon's unsuccessful effort to claim executive privilege to avoid handing over tapes of Oval Office conversations during the Watergate investigation. Bush then announced his order to seal the documents, issuing a statement in which he tried to appease both sides without providing a specific solution.

Bush said he hoped the 45-day respite would ``provide both parties more time to resolve the issues in a way that ensures that materials relevant to the ongoing criminal investigation are made available to prosecutors in a manner that respects the interests of a co-equal branch of government." Hastert and Pelosi responded by ordering that House officials begin negotiations with the Justice Department over procedures under which criminal evidence could be obtained from Congress.

But some legal observers said the congressional leaders were acting out of self-interest in criticizing the raid, trying to stymie a widening probe of members of Congress, similar to the way Nixon fought demands for Watergate tapes. The Supreme Court rejected Nixon's argument.

Stephen Gillers, a professor of law at New York University, is among a number of legal experts who said yesterday that the Hastert-Pelosi complaint is without legal merit.

``The law is simply against the Hastert-Pelosi decision," Gillers said. ``It appears that the FBI went through all the right channels. I think Congress will lose in court. It is a mistake to take such an adamant position. Legally it is a mistake, and politically it is a mistake, to try to define an office as a `search warrant-free zone,' because bad things can happen in offices."

Gillers cited a 1997 case in which President Clinton fought a prosecutor's efforts to obtain notes regarding his discussions about the Whitewater land deal with a White House counsel. A court ruled that Clinton had to hand over the materials. Gillers said the same reasoning would apply to allowing the raid on Jefferson's office, which was authorized by judicial approval of the search warrant.

Richard Fallon, a professor of constitutional law at Harvard Law School, also disputed the idea that congressional offices should be free from criminal investigations, saying, ``I think that if this case gets fought to the Supreme Court, it is probably a loser" for Congress.

John Dean, who was Nixon's White House counsel and deeply involved in the claim of executive privilege, said that the privilege claim ``is obviously a wonderful technique for stalling an investigation. Some might call it an obstruction of justice, and some might call it separation of powers."

Dean said that Nixon had a valid concern about separation of powers, and that Congress may have a valid concern as well. While the FBI ``acted clumsily" in not informing House leaders about the raid, he said, the legality of the raid may have to be determined by the Supreme Court.

Hastert, too, saw the issue in constitutional terms. ``The actions of the Justice Department in seeking and executing this warrant raise important constitutional issues," the speaker said in his Wednesday statement. ``I expect to seek a means to restore the delicate balance of power among the branches of government that the founders intended."

The matter is complicated by the fact that the FBI also is involved in at least three probes targeting more than a half-dozen members of Congress.

ABC News reported Wednesday that Hastert is under investigation by the Justice Department for a possible connection to the scandal involving former lobbyist Jack Abramoff, who has pleaded guilty to conspiracy, fraud, and tax evasion. Hastert received $26,000 in contributions from Abramoff and some of the lobbyist's clients shortly before writing a letter to the Interior secretary opposing a casino that also was opposed by at least two of the clients.

Hastert has denied that he did anything in exchange for the contributions, and the Justice Department issued a statement Wednesday night saying that Hastert was not under investigation.

In an interview yesterday on WGN radio in Chicago, Hastert said, ``This is one of the leaks that come out to try to, you know, intimidate people. We're just not going to be intimidated on it."

One former member of Congress, California Republican Randy ``Duke" Cunningham, is in prison on bribery charges. Other members, including Jefferson and Republican Bob Ney of Ohio, are under bribery investigation. Examinations are probing whether an unknown number of other members took bribes or illegal gifts.

Even before the raid of Jefferson's office, observers said, there was an air of anxiety on Capitol Hill.

Nonetheless, some members of Congress questioned the position of Hastert and Pelosi.

``Criticizing the executive and judicial branches of our government for fully investigating a member of Congress suspected of criminal wrongdoing sends the wrong message and reflects poorly upon all of Congress," Representative Barbara Cubin, a Wyoming Republican, said in a statement. ``They should not expect their congressional offices to be treated as a safe haven."

Pelosi, in a press conference yesterday, stood by her criticism of the raid, saying ``this was not about protecting an individual member of Congress." Pelosi also stood by her request that Jefferson give up his seat on the Ways and Means Committee, which has drawn objections from the Congressional Black Caucus, of which Jefferson is a member.

``I'm hoping that Mr. Jefferson will resign from the committee," Pelosi said. ``That's all I'm going to say on that subject."

Material from Associated Press was used in this report.