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But even with all the confusion over the contested materials, Jefferson continues to gain new allies in his ongoing court fight with the Justice Department.
Already, a bipartisan group of House leaders that included Speaker Dennis Hastert (R-Ill.) and Minority Leader Nancy Pelosi (D-Calif.) filed an amicus brief before Hogan when he initially considered Jefferson’s request to declare the search unconstitutional, although Hogan rejected the group’s arguments. That group may file a similar amicus brief with the appeals court, although the two party leaders have not agreed yet on whether they will do so.
With the appeals court’s 60-day filing deadline for non-governmental parties about to expire, Gingrich, Foley and Michel declared their intention to enter the case on Tuesday, as did the others.
Gingrich has been particularly vocal in expressing his displeasure over the FBI search, publicly decrying it as a violation of separation of powers between the two branches of government.
Much like Hastert and Pelosi, Gingrich did not seek to protect Jefferson but instead insisted that Congress cannot allow such a precedent, because it could be abused by a future administration in a political battle with Capitol Hill, to stand.
Gingrich was not available for comment on Tuesday, but he made his feelings about the case known in a June 8 opinion piece in Roll Call.
“But what is not firmly settled, and what is a dramatic departure from established practice, is the executive branch’s bold assertion that it can direct the FBI to raid a legislative branch office, with a judicial warrant, without consultation or cooperation from legislative branch leaders, as it did for the first time in the history of the American republic on May 20,” Gingrich wrote.
In an interview, Michel said he had not seen a draft of the amicus brief that will be filed by the three former lawmakers but had agreed to sign onto the motion.
“All I did was agree to at least participate,” said the former Illinois Republican. Michel said the brief was being drafted by lawyers at the firm Bingham McCutchen.
Ornstein, a Roll Call contributing writer, said the case has implications far beyond Jefferson’s own legal and political future.
“This is a real question of legislative integrity in the face of an executive branch that has every interest in intimidating them from time to time,” Ornstein said.
Brand, who served as House general counsel from 1976 to 1983, said Congress must defend itself from intrusions by the executive and judicial branches on its authority.
“I just thought that when you get the four former [House] general counsels all on side, hopefully it adds some weight to the consideration of a longstanding issue that directly affect the House and its Members,” Brand said.