The separation of powers has taken quite a battering under the Bush administration: the president's "signing statements" alter or even negate the plain meaning of laws passed by Congress; Bush attempts to employ executive-branch military tribunals instead of courts whenever possible; he doesn't bother to observe laws passed by Congress requiring executive agencies to get a court order for domestic wiretaps; etc. You know the litany.
The Republican-led Congress has been virtually supine throughout all of this, illustrating once again how political parties can short-circuit the entire idea of separation of powers. But one thing the executive branch has done lately really has lit a fire under House Speaker Dennis Hastert: the FBI raid of Rep. William Jefferson's office. This is a separation of powers issue that Congress actually cares about. The Washington Post quotes Hastert:
"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress," he said. "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."
It's easy to scoff at this — the constitutional right of congressmen to accept suitcases full of money must be protected! — but actually, Hastert is right. One tip-off is that the Viet Dinh, chief author of the PATRIOT Act and a man who has seemingly never met a civil liberty or constitutional protection he would not abrogate, defends the raid, as the Post reports.
The raid is just as unprecedented as Hastert says, and there's a reason this sort of thing hasn't been done before: it does indeed have the potential for abuse as a means to intimidate the legislature. The FBI didn't explicitly violate Article I, Section 6 of the Constitution — "[Congressmen and senators] shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place" — but traditionally "Parliamentary privilege" and its analogs are given a wide interpretation. University of Baltimore Law Profess Charles Tiefer has been quoted in several sources spelling out what's at stake. He told a reporter for CongressDaily:
"Congress is frequently at odds with the FBI and the Department of Justice and other investigative or security agents working with them," he said. "It must intimidate critical overseers to know that the FBI feels they have the power to seize their file cabinets without even serving a subpoena beforehand."
And as he told the Washington Post: "The Framers, who were familiar with King George III's disdain for their colonial legislatures, would turn over in their graves."