Washington Post:

 

WASHINGTON - The Justice Department signaled to the White House this week that the nation's top three law enforcement officials would resign or face firing rather than return documents seized from a Democratic congressman's office in a bribery investigation, according to administration sources familiar with the discussions.

 

The possibility of resignations by Attorney General Alberto R. Gonzales; his deputy, Paul J. McNulty; and FBI Director Robert S. Mueller III was communicated to the White House by several Justice officials in tense negotiations over the fate of the materials taken from Rep. William J. Jefferson's office, according to the sources, who spoke on the condition of anonymity because of the sensitivity of the issue.

 

Justice prosecutors and FBI agents feared that the White House was ready to acquiesce to demands from House Speaker J. Dennis Hastert (R-Ill.) and other lawmakers that the materials be returned to the Louisiana congressman, who is the subject of a criminal probe by the FBI. Vice President Cheney's chief of staff, David S. Addington, was among the leading White House critics of the FBI raid, telling officials at Justice and on Capitol Hill that he believed the search was questionable, several sources familiar with his views said.

 

Administration officials said yesterday that the specter of top-level resignations or firings at Justice and the FBI was a crucial turning point in the standoff, helping persuade President Bush to announce a cease-fire on Thursday. Bush ordered that the Jefferson materials be sealed for 45 days while Justice officials and House lawmakers work out their differences, while also making it clear that he expected the case against Jefferson to proceed.

 

Spokesmen for the White House, Cheney's office, the Justice Department and the FBI declined to comment, saying they would not discuss internal deliberations.

 

White House officials were not informed of the search until it began last Saturday and did not immediately recognize the political ramifications, the sources said. By Sunday, however, as the 18-hour search continued, lawmakers began lodging complaints with the White House.

 

Addington -- who had worked as a staffer in the House and whose boss, Cheney, once served as a congressman -- quickly emerged as a key internal critic of raiding the office of a sitting House member. He raised heated objections to the Justice Department's legal rationale for the search during a meeting Sunday with McNulty and others, according to several sources.

 

The talk of resignations adds another dramatic element to the remarkable tug of war that has played out since last Saturday night, when about 15 FBI agents executed a search warrant on Jefferson's office in the Rayburn House Office Building.

 

The raid -- the first physical FBI search of a congressman's office in U.S. history -- sparked an uproar in the House, where Hastert joined Minority Leader Nancy Pelosi (D-Calif.) in demanding that the records be returned because they viewed the search as an illegal violation of the constitutional separation of powers.

 

Hastert wrote in an article published in USA Today yesterday that House lawyers are working with the Justice Department to develop guidelines for handling searches of lawmakers' offices. "But that is behind us now," Hastert wrote. "I am confident that in the next 45 days, the lawyers will figure out how to do it right."

 

Also yesterday, Senate Majority Leader Bill Frist (R-Tenn.) met with Gonzales at the senator's Capitol Hill office.

 

"We've been working hard already, and we'll continue to do so pursuant to the president's order," Gonzales told reporters on his way into Frist's suite just off the Senate floor.

 

Jefferson, 59, has been under investigation since March 2005 for allegations that he took hundreds of thousands of dollars in bribes in exchange for using his congressional influence to promote business ventures in Africa. Two people have pleaded guilty to bribing him, including Brett Pfeffer, one of his former aides, who was sentenced yesterday to eight years in prison by a federal judge in Alexandria.

 

An FBI affidavit released this week alleged that Jefferson was videotaped taking $100,000 in bribe money and that a search of his Washington apartment turned up $90,000 of that money wrapped in foil inside his freezer. Jefferson, who has not been charged, has denied any wrongdoing.

 

The unprecedented FBI raid on Jefferson's office triggered an extraordinary chain of events. Hastert, long one of the president's staunchest allies in Congress, and his chief of staff, Scott Palmer, were immediately angered by the tactic. On Monday, Hastert pushed Bush strongly on the issue during a trip the two shared on Air Force One coming back from Chicago. "Hastert was white-hot," said a senior administration official.

 

Bush expressed sympathy but did not take sides, the official said: "He did not say, 'I share your view.' He said, 'Look, we're going to try to work with you to help resolve this.' "

 

The view of the emerging political landscape was notably different at Justice, where officials feared they were quickly losing the debate. Prosecutors and FBI agents felt the materials were obtained from Jefferson through a lawful and court-approved search and that returning them -- as demanded by Hastert and others -- would amount to an intolerable political intervention in the criminal justice process.

 

Justice had one ally at the White House in Frances Fragos Townsend, the homeland security adviser and former prosecutor, who spoke in defense of the raid's legality at a meeting on Monday, according to two sources familiar with her remarks. Townsend was not invited to participate in subsequent discussions on the issue, however. A senior administration official said she would not normally be involved in the topic.

 

At a particularly contentious meeting Monday night at the Capitol, Palmer angrily upbraided William E. Moschella, the assistant attorney general for legislative affairs, and two other Justice officials, saying they had violated the Constitution, several sources said.

 

As the week progressed, the confrontation escalated further. At some point in the negotiations, McNulty told Palmer that he would quit if ordered to return the materials to Jefferson, according to several officials familiar with the conversation.

 

McNulty, a former Alexandria prosecutor who was recently named Gonzales's deputy, was a central player in the contentious negotiations with Capitol Hill and the White House, sources said. He had also worked in the House for 12 years, as chief counsel for both the majority leader's office and a crime subcommittee.

 

A message that McNulty might quit was passed along to the White House, along with similar messages for Gonzales and Mueller. Sources familiar with the discussions declined to say which Justice officials communicated those possibilities to the White House.

 

The discussion of Gonzales and the others resigning never evolved into a direct threat, but it was made plain that such an option would have to be considered if the president ordered the documents returned, several sources said. "It wasn't one of those things of 'If you will, I will,' " one senior administration official said. "It was kind of the background noise."

 

"One of the reasons the president did what he did was these types of conversations and other types of conversations in the House were escalating," the official said, referring to murmured threats by some House Republicans to call for Gonzales's resignation.

 

The desire to do something before the Memorial Day recess also created an "artificial deadline" that Bush considered counterproductive. "As the week moved on," the official said, "there's no question emotions were running high on both sides. . . . People had a gun to their head, and it was really making people not more flexible but more intense. It was his view to say let's get more time."

 

The White House grew especially concerned about a House Republican Conference meeting scheduled for 11 a.m. Thursday and later rescheduled for 3:30 p.m. In the heat of the moment, it could have gotten out of hand and wound up with some sort of resolution demanding that Gonzales step down. "You never know what's going to happen in a conference," the official said.

 

Bush decided to head off the situation. He summoned Cheney, Chief of Staff Joshua B. Bolten, Deputy Chief of Staff Karl Rove, counselor Dan Bartlett, legislative director Candida Wolff, White House Counsel Harriet Miers, Deputy White House Counsel William K. Kelley and some other staff members to the Oval Office on Thursday morning and announced that he had decided to seal the Jefferson documents.

 

"I'm going to put an end to the escalation," one official quoted Bush as saying. "We've got to calm this down."

 

Bush directed Cheney to inform Hastert, while Bolten told Gonzales.

 

Bush aides were also worried about a war with the Republican House if the president did not act.

 

"If you tell the House to stick it where the sun don't shine, you're talking about a fundamentally corrosive relationship between two branches of government," the senior administration official said. "They could zero out funding; they could say, 'Okay, you can do subpoenas, so can we.' "

 

This whole Jefferson thing has gotten a lot bigger thanks to the FBI...

Those should be removed, these continued breach of seperation of powers is getting upsetting.

 

If Bush gets impeached for anything it shall be for such things as that.

Those should be removed, these continued breach of seperation of powers is getting upsetting.

 

If Bush gets impeached for anything it shall be for such things as that.

 

This is the second controversial raid in two weeks. Just before this raid, FBI agents launched an unprecedented raid on CIA Headquarters, without prior notification.

This is just a pathetic argument from the House. There's plenty of evidence of wrong-doing and the FBI had a court-approved warrant. Why shouldn't they be allowed to search the offices.

 

Congress is trying to say "We can investigate the executive branch all we want, but the executive branch can't investigate us, only we can investigate us".

 

This isn't about separation of powers, this is about the Legislative Branch protecting its ability to coverup the wrong doing of its members.

Yeah I don't understand how seperation of powers is implicated nor do I see how the speech and debate clause is undermined. Certainly a congressman couldnt kill someone and then hide the body in his office. If a judge grants a warrant that has probable cause that evidence of a crime exists in that office, I think the executive has the ability to go in.

 

Here is the speech and debate clause along with the text of a case discussing it:

They 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.

 

Nearly a century ago, in Kilbourn v. Thompson, this Court held that the Clause extended "to things generally done in a session of the House by one of its members in relation to the business before it." More recently we expressed a similar definition of the scope of the Clause:

 

"Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, the must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but `only when necessary to prevent indirect impairment of such deliberations.'" Gravel v. United States.

Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators...." Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory statements originally made in either House. We perceive no basis for departing from that long-established rule.....

 

In Gravel v. United States, we recognized that the doctrine denying immunity for republication had been accepted in the United States: "[P]rivate publication by Senator Gravel . . . was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence...."

 

 

 

So I guess their argument is going to be that an essential part of the legislative activity of congress is to not have their private offices with private papers that allow them to diliberate be invaded. I really don't think this is going to hold up.