FBI search stiffened Congress’ resolve

WASHINGTON – Whether out of party loyalty or wartime solidarity, the Republican Congress largely deferred to the Republican president for five years as he expanded executive power.

When President Bush set up his own new military justice system for detainees, or invited industry lobbyists to secretly help shape energy policy, or declared he would ignore bills he signed into law if he deemed them out of bounds, Congress stepped aside.

It took federal agents rummaging through file cabinets and computer hard drives inside Congress’ own privileged enclave on Capitol Hill to finally rouse the leadership into revolt. The FBI raid on a Democratic congressman’s office a week ago might at first have been about the $90,000 in marked bills previously found in his home freezer, but it has quickly morphed into an eruption of resentment born of a dramatic shift in the balance of power during the Bush presidency.

Suddenly, even Bush’s chief allies in Congress, House Speaker Dennis Hastert, R-Ill., and Senate Majority Leader Bill Frist, R-Tenn., were decrying executive overreach and defending the prerogatives of the legislature as an equal branch of government. And in a rare move, they faced Bush down, forcing him to take the extraordinary step of intervening in a criminal case to placate irate lawmakers.

“The administration has been pushing the envelope, and Congress hasn’t been doing proper oversight,” Rep. Christopher Shays, R-Conn., said Saturday. “I think some members are going to start to step up to the plate and do more. … The executive branch has lost a sense of balance and proportion and they’re just grabbing at everything, and if we were doing more oversight we might have handled this in a different way.”

Bush took office determined to restore what he saw as the lost authority of the executive branch, encouraged by Vice President Dick Cheney, who often talked about how Watergate emasculated the presidency. The terrorist attacks of Sept. 11, 2001, convinced both Bush and Cheney that the executive needed to take a strong hand to fight an elusive new enemy, according to aides, and left many lawmakers unwilling to challenge them for fear of undermining the war effort.

“It’s unbelievable what they went along with until now – a strikingly supine reaction to the most aggressive executive in modern America,” said Brookings Institution scholar Thomas Mann. “The willingness to defer to Bush, the Pentagon, Justice Department, you name it, is breathtaking. When it serves the interest of the majority party fine. When it doesn’t, they suddenly discover the Constitution.”

Norman Ornstein, a scholar at the American Enterprise Institute, coined the phrase “battered Congress syndrome” to describe a Bush-dominated legislature. “Republican leaders in Congress identified themselves as field generals or lieutenants of the president’s army,” he said. “They were not doing any oversight to speak of.”

That began to change late last year – coincidentally or not, right around the time Bush’s approval ratings began sliding to record low levels. Congress investigated the administration’s botched response to Hurricane Katrina, passed legislation intended to ban torture of detainees over White House objections and held hearings on Bush’s warrantless surveillance program after it was revealed in the media.

The anger escalated over the proposed management takeover of several U.S. ports by an Arab-owned firm. The company pulled out of the deal under pressure.

By the time FBI agents showed up at the congressional office of Rep. William Jefferson, D-La., on a Saturday evening a week ago, the stage was set for a confrontation. Never before had federal officers raided a congressional office, but the Justice Department figured it had approached it properly by obtaining a search warrant in the bribery case from a federal judge, timing their visit to keep it low profile and not informing the White House first to avoid the appearance of politics.

Accustomed to congressional deference, they were stunned when it blew up into a constitutional crisis over separation of powers and Hastert and House Minority Leader Nancy Pelosi, D-Calif., demanded Jefferson’s files be returned.

Amid multiple investigations of congressmen, many stemming from the conviction of lobbyist Jack Abramoff, this one struck close to home. “This is the one that sends them to jail,” said Douglas Kmiec, a Pepperdine University constitutional law specialist and former Reagan administration lawyer. “They just watched (former Republican Rep.) Duke Cunningham go to jail. There’s an investigation of (Rep.) Bob Ney, there’s another investigation of Congressman (Alan) Mollohan, there are all the peripheral people caught up in the Abramoff matter.”

Others rejected the supposition that Republican members saw themselves potentially at risk. “There was a level of contempt in the raid that resonated with members,” said Jonathan Turley, a George Washington University law professor who will testify at a House hearing on the matter Tuesday.

The situation also became enmeshed in other battles. Hastert, for instance, was angry that Bush forced out his friend, CIA Director Porter Goss. House Judiciary Chairman F. James Sensenbrenner Jr., R-Wis., who titled Tuesday’s hearing “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution,” was already fighting the White House on immigration legislation.

In this case, though, Congress found an unlikely ally within the White House for its point of view – Cheney. Although a strong proponent of executive power, Cheney and his staff sided with Hastert concerning the raid.