Akhil Amar, one of the very best constitutional scholars in the nation, has an essay at Slate about the controversy over the FBI’s search of the office of a congressman in a criminal investigation. He says pretty much exactly what I’ve been saying since the day it happened, that the only problem with the search was procedural, not constitutional. The speech and debate clause, contrary to the assertions of Hastert and Pelosi, do not protect a legislator against arrest or against having their office searched as part of a felony investigation.
The procedural mistake the FBI made was in not having an impartial third party there to screen the material. There is such thing as legislative privilege, just as there is attorney-client privilege. When a search warrant is executed on an attorney’s office, law enforcement must have someone present who looks at any written material before hand to decide whether it would violate that privilege. If so, then the matter has to be adjudicated. If not, he hands it over to the police. The FBI should have done the same thing here, had someone from the Sgt-At-Arms office of the legislature to screen the material in that manner. But there is absolutely nothing in the Constitution which prevents a search or an arrest of a sitting congressman.