Does Search of Jefferson's Office Violate the "Spirit" of the Constitution? (And Does it Matter?)

In the ongoing saga of the Washington Post's horrendous coverage of the Jefferson bribery story: Now the Washington Post contends (on page A10) that the "Breach was more of the Spirit, Not Letter, of the Constitution."

This is a tricky way of saying that the Constitution does not protect Jefferson's office from a warranted search. Or in other words, the Washington Post was wrong here. And here. As explained in this post, the Speech and Debate Clause does not protect a place or the entirety of a Congressperson's files, it protects only materials closely connected to legislative acts. (As a general rule, if a party is arguing from the "spirit" of the law, they probably don't have the law on their side. "Spirit" arguments are often mere subterfuge.) Further, if the search does not violate the "letter" of constitution, more precisely the text of the Constitution as interpreted by Supreme Court in caselaw - it does not violate the Constitution.

Tellingly, practically nothing in the article even supports the author's "violate the spirit" theory:

"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University's Fletcher School of Law and Diplomacy.

But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law. "It's really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don't see any constitutional principle here."

In a series of cases during the 1960s and '70s, the court drew a protective line around papers, speeches and activities that are "essential" to legislative acts or the motives behind them, such as floor statements or committee reports. But it declined to protect anything not closely connected to legislative work, such as remarks to the press or constituent newsletters.

So two experts say there is no constitutional protection, and the author admits that the Supreme Court has "declined to protect anything not closely connected to legislative work." What was that about spirit?

But Stanley M. Brand, who was counsel to the House of Representatives from 1976 to 1983, said that "the problem is who watches them when they rummage to make sure they are not looking at legislative records."

The answer, Mr. Brand, is that no-one has to "watch" them. The trial judge will later rule on a motion to suppress evidence, and the government will not be able to use at trial any evidence shielded by the Speech and Debate Clause.

Also, why did the Post bury this story on page A10? The front page story is that Congress has made a bipartisan request that the Justice Department return the Jefferson files. This not so subtly suggests that the request has legal legitimacy. Only on page A10 do we discover that the search likley was constitutional according to the "letter" of the law.

The arrogance of these House members is amazing. In essence, they want to be able to decide for themselves what parts of a criminal investigation they comply with. ("Hey, Mr. Congressman-under-investigation-for-bribery, why don't you go ahead and send over whatever documents you feel like sending us relating to our bribery investigation? Thanks.") For obvious reasons, that is not how the process works. Essentially, these members of Congress want the US Capitol to be the one place in America beyond the reach of a search warrant. How about no.

UPDATE: Here's a post and comments over at Volokh on this issue.