Today, let us start with U.S. District Judge Thomas Hogan, who initially authorized the raid on the Congressional office of Rep. William Jefferson (D-La.).

Resident Scholar Norman J. Ornstein

Not surprisingly, Hogan has now said the raid he authorized was constitutional. More significantly, and far more worrisome, he has ordered that all the materials seized--including computer hard drives filled with information about legislative business--should be turned over to the Justice Department. That is dead wrong and, frankly, reckless.

At minimum, Hogan should have continued to leave the materials that were not clearly and narrowly related to the criminal charges against Jefferson in escrow until the appeals are sorted out. Hogan should reread both his copy of the Constitution and the history of the Speech or Debate Clause.

And he, and the rest of us, should step back and think about the consequences of his ruling. Regardless of whether the raid itself is constitutional, the way in which the Justice Department and the FBI carried it out was itself reckless and foolish and a clear affront to Congress, setting an extraordinarily dangerous precedent.

There is absolutely no reason to do a search of the sort that Justice and the FBI did without allowing some objective input from a representative of the legislative branch. We have zero reason to believe that the general counsel of the House of Representatives would try to block materials relevant to a criminal investigation from prosecutors. The House counsel’s only interest would be to protect the prerogatives of Congress. If there were disputes about any of these materials, those could be dealt with in court.

But the idea that executive branch officials can raid any office on Capitol Hill and walk off with hard drives of computers without any screening--giving them access to sensitive legislative information, including a whole lot that is in no way relevant to any criminal investigation--should be chilling to anyone concerned about the separation of powers.

For the first time in five years, Congress is showing tentative signs of a backbone on oversight of intelligence, torture policy, detentions at Guantanamo, the conduct of the Iraq war and the Department of Homeland Security. From Sen. Arlen Specter (R-Pa.), who has been an exception to the rule of Congressional lassitude, to Sen. John Warner (R-Va.) to Sen. Lindsey Graham (R-S.C.) to Rep. Pete Hoekstra (R-Mich.), there finally may be lawmakers willing to look into executive overreach.

Some of that overreach can be found in the Justice Department, going right up to the attorney general, who apparently sees his role not as an objective interpreter of the law and the Constitution but as an extension of his earlier post as White House counsel.

Imagine what happens now if an aggressive Congressional investigation begins to get too close to the attorney general or other top administration officials. Sadly, it is not far-fetched to imagine retaliation via a raid seizing materials from the offices of the chairman or other members on the investigating committee--or at least a threat to do so--as a tactic of intimidation.

And that could be true of any administration. What if, in the 1970s, President Richard Nixon’s White House and John Mitchell’s Justice Department had this precedent to work with as the House Judiciary Committee was considering articles of impeachment? Can anyone doubt that they would have been tempted to investigate wrongdoing by the House Republicans who provided the key votes? What about when Congress investigated the armed standoffs at Waco or Ruby Ridge? Or the Clinton impeachment?

Still, the temptation to use tactics of intimidation is especially great with the current administration, which has articulated the most dismissive view of Congress of any in modern memory--dismissive enough that it even has begun to tick off loyalists like Hoekstra. To them, it is not simply insensitivity to Congress but a hyperexpansive view of executive power. The White House views any serious oversight as encroachment and will fight it aggressively, stopping only if there is a major public backlash.

The contempt for a serious role for the legislative branch is especially stunning since the White House is dealing with a Republican Congress that has demonstrated a record of striking submissiveness. If Democrats take control of one or both chambers of Congress in November, the new majority will inexorably move toward aggressively hostile and assertive oversight. If that happens, we can expect an even more hostile reaction from the Bush administration, which could bring us to the point of serious institutional warfare. Is it beyond the pale to imagine investigations of presumptive House Judiciary Chairman John Conyers (D-Mich.) or presumptive Speaker Nancy Pelosi (D-Calif.) under these circumstances? Hogan’s complete insensitivity to the risk of inter-branch intimidation is truly worrisome.

I have browsed Web loggers’ reaction to the Hogan decision; not surprisingly, it is overwhelmingly favorable. Most Americans, if they follow this issue at all, will see this as Congress trying to raise itself above the law, or as Congress getting what it deserves. I hope some who have that initial, emotional reaction will step back and think about the larger issues. Anyone who cares about the dangers of unchecked governmental power, or of the virtues of checks and balances, should be scared to death about the consequences of this precedent.

I should add that I do not believe what Justice and the FBI did in the Jefferson raid was done for this or any other nefarious purpose. I think the motivation was in part a reaction against Jefferson’s own behavior, which, if the allegations in the public record are true, was contemptible. I suspect it also was driven by a larger conclusion on the part of prosecutors in Justice’s Public Integrity Section that the corruption in Congress now runs deep and wide.

Readers of this column know I share that judgment. I want an aggressive prosecution of miscreants that does not stop at a few vulnerable rank-and-file Members if others, no matter their status or stature, deserve indictment. I want the culture of corruption cleared up. But I want it done in a way that is reasonable and prudent.

More than likely, the in-your-face move by the FBI and Justice--threatening the Capitol Police if they tried to stop or delay the raid and blocking access to the legal counsel to the House of Representatives or anybody else representing the legislative branch as they searched the office unfettered--was a signal to the Speaker and every other Member that no one is safe in this broader investigation. The signal is the right one, but the means are seriously wrong.

Prosecutors always try to push the envelope when they pursue wrongdoers; it is the job of judges to set limits. No government power is more awesome than that of prosecutors and police. Like any other power of the state, it needs checks to prevent overreach and tyranny. Some judges have a blind spot in this area, Hogan among them. I hope the appeals court judges, and ultimately the Supreme Court, show more common sense, restraint and respect for the constitutional balance.

Norman J. Ornstein is a resident scholar at AEI.