In the early 1970s, I was co-counsel for then-senator Mike Gravel (D-Alaska) in his court challenge to the Nixon administration’s subpoena seeking Gravel’s copy of the Pentagon Papers. Even Nixon and his thuggish attorney general, John N. Mitchell (who ended up serving a well-earned prison sentence for perjury, obstruction of justice, and conspiracy), did not have the temerity to conduct a search of Gravel’s senatorial office in hopes of finding his copy of the Pentagon Papers. A search, after all, is one giant step more intrusive than a subpoena that simply demands that the congressman produce the document. Nixon and Mitchell did not even subpoena Gravel directly, fearful of transgressing the clause. Instead, they subpoenaed one of the senator’s aides, but Gravel intervened to argue that the subpoena was an intrusion by the executive branch into his official work. Even the subpoena caused a firestorm, and the Senate joined the Supreme Court fight on behalf of legislative privilege. The court was unanimous in ruling that the clause protected all legislative activities, but Gravel lost his effort to overturn the subpoena by a single vote because of the manner in which he’d processed the papers. Had the FBI raided Gravel’s office, it would have likely shown up in the bill of impeachment being drawn up at the time Nixon resigned the presidency.

Bush announced a 45-day cooling-off period during which the seized documents will be held but not read by the solicitor general while the Department of Justice tries to work out a plan with the House leadership. Attorney General Gonzales and FBI director Robert Mueller, who don’t seem to understand the meaning and scope of the clause (any more than do most legal commentators being quoted in the press), have threatened to resign if the documents are returned. But if they really grasped the scale of the constitutional insult the administration has hurled at Congress, they might have instead suggested that House counsel share custody of the Jefferson papers with the solicitor general. This would be in the spirit of their constitutional obligation to Congress’s right to protect the people’s legislative business from royalist snoops.         

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