I know there’s a (weak) constitutional argument here, though I have a hard time believing that Hastert and Pelosi really think that the doctrine of separation of powers prevents a court-ordered seizure of documents unrelated to any legislative activity after a subpoena has been ignored. If they do, they’re endorsing a degree of complete immunity from law enforcement rarely seen since Thomas a Becket claimed that Henry II had no jurisdiction over criminal clergy (or at least since the last Bush administration ukase about the president’s imperial powers over national security).
Look, it can’t happen without the other two branches agreeing to it. There is no immunity from prosecution in the Constitution and there shouldn’t be.
There isn’t anything to negotiate. If there is a valid search warrant, the Executive nor the Legislative branches have immunity from the law. Of course there was no warning–we don’t call crack houses and tell them the police are on the way over do we?
If breaking the law includes using one’s position as a Member of Congress, than the records of that Member are fair game. Members of Congress have one special protection in terms of the law and that is they may not be detained on the way to session. That is all. Otherwise they are citizens and subject to the same rules.
But remember Congress is the people’s branch of government. The Judiciary is the technocrats and the Presidency is our last vestige of monarchy, but Congress is the People!
Also, if the President had a better relationship with Congress this wouldn’t be an issue at all (winks would be issued all around).
Finally, if the FBI had simply gone to the sergeant at arms with their warrant and informed the Majority and Minority leaders (who aren’t part of this investigation) and allowed them to be present, I don’t think people would be screaming either. There is a protocol to be followed.
But there isn’t a protocol to be followed. There is no special treatment for the Executive Branch when hit with a criminal subpeona and the same for the Legislative and Judicial branches with the exception of traveling to session for Members of Congress.
In the case of a criminal investigation you don’t give people with relationships to the target warning about what you are going to do. It’s a made up privilege that Pelosi and Hastert are trying to assert. In this case it is a bribery case so the public acts of the official are directly relevant to the investigation.
And specific to the Capitol Police and Sergeant at Arms–they are essentially trained to be deferential to Members–that’s not appropriate in cases like this.