House Democrats Seek Wiretap Rules

Posted April 28, 2009 at 6:54pm

In the wake of reports last week that Rep. Jane Harman (D-Calif.) got caught in a politically embarrassing conversation by a government wiretap, House Democratic leaders are quietly reaching out to the Justice Department to develop new protocols for law enforcement involving Members of Congress.

The outreach seeks to revive and expand talks that never got off the ground with the Bush administration last year. Those were aimed at developing guidelines for searches of Congressional offices, after the FBI’s May 2006 raid of then-Rep. William Jefferson’s (D-La.) Capitol Hill office touched off bipartisan outrage.

House General Counsel Irv Nathan on Monday sent a letter to Attorney General Eric Holder saying House leaders have “urged me— to restart negotiations over “hopefully rare searches and electronic surveillance involving Members of Congress.—

Reports surfaced last week that Harman was picked up by government eavesdroppers in 2005 telling a suspected Israeli agent that she would seek leniency for two accused spies in return for their help in lobbying Speaker Nancy Pelosi (D-Calif.) for the top slot on the House Intelligence Committee.

Harman mounted a vigorous counteroffensive, denying the allegations and trying to marshal protected Congressional rights to her defense. She sent Holder a letter calling the apparent wiretap and its leak to the press an “outrage— and an “abuse of power— and called on him to release an unedited transcript of the wiretap and to investigate possible wiretapping of other lawmakers.

Appearing on CNN last week, Harman said her phone is “ringing off the hook in my office from worried Members who are asking whether I think it could have happened to them.—

Nathan’s letter does not mention Harman by name but makes clear reference to her reported situation, in which eavesdroppers were apparently targeting the other person on the call and stumbled into ensnaring her. “These protocols need to deal with physical searches of premises, with situations where a Member may be a target of an intercept and also with situations where the subject of the wiretap is a non-Congressional third party and Members are not specifically targeted for taping,— it reads.

Lawmakers have been publicly quiet in the wake of the Harman news, in stark contrast to the bipartisan outpouring of anger after the Jefferson raid, when then-Speaker Dennis Hastert (R-Ill.) led a chorus of lawmakers blasting the move as a violation of the Constitution’s separation of powers protections.

But House Democratic aides said lawmakers were nevertheless nervous about the potential for abuses by law enforcement officials, whom some suspect to be sitting on other so-far-undisclosed wiretapped conversations of Members. Pelosi, in a closed-door briefing of her whip team on Thursday, told her lieutenants that she will fight to uphold the constitutional protections of the legislative branch, noting that Nathan was on the case, according to sources in the room.

Pelosi spokesman Nadeam Elshami said Nathan’s letter to Holder “builds on an ongoing process of discussions and other correspondence between the legislative and executive branches to establish clear protocols with respect to searches and wiretaps.— Michael Steel, spokesman for House Minority Leader John Boehner (R-Ohio), declined to comment.

Lawmakers would enter refreshed talks with the administration having won an important victory in the Jefferson case. An appeals court last year ruled that the Jefferson raid was unconstitutional, and the Supreme Court refused a Justice Department request to reconsider that ruling.

In February 2008, with Justice’s appeal pending, then-Attorney General Michael Mukasey appeared before the House Judiciary Committee and suggested the Bush administration would rather resolve the conflict outside of a courtroom.

“We would much prefer to resolve that case in the way that most disputes with respect to privilege and other matters are resolved between Congress and the Justice Department, namely by conversation and accommodation,— he said.

The appeals court itself endorsed that approach in its ruling, essentially directing the two sides to hash out an understanding. Nathan’s letter asks for a “prompt meeting— with Justice officials “to resume negotiations with a sense of urgency to reach agreement on and to implement such protocols at the earliest opportunity.—

It is not yet clear if Holder’s department is ready to deal. Justice spokesman Ian McCaleb would only confirm the department has received the letter and is reviewing it.

One ethics advocate said the two sides should work out an agreement as quickly as possible — for the sake of ongoing and future corruption probes. Public Citizen’s Craig Holman pointed to the botched prosecution of former Sen. Ted Stevens (R-Alaska) as a worrisome sign for those cases.

“To help ensure that doesn’t happen again, it would be very useful for the attorney general to come out with specific guidelines for how to pursue these cases,— he said.