You and Kleiman are both wrong. Congress retains a wide variety of mechanisms by which it can bite back at the FBI, including the power of the purse and its own investigations into FBI malfeasance. I assume that the threat of the latter is what forced the present temporary deal regarding sealing the documents.
power of the purse
How is this going to work? Defunding the whole FBI? It can't be targeted successfully.
its own investigations into FBI malfeasance
Much less powerful. To get any leverage, Congress would have to be able to prove a political conspiracy, and if you've noticed, without Executive cooperation, Congress can't really do jack-shit about being lied to.
The problem with separation of powers is that any action that another branch takes against the Executive can be met with Andy Jackson's retort when the Supreme Court told him he had to let the Cherokee keep their land: "You and what army?" The Executive has the army, and the police - it has every part of the government that can actually do anything. Unless there are strong legal and customary protections for the other branches of government, the Executive can walk all over them unchecked.
How is this going to work? Defunding the whole FBI? It can't be targeted successfully.
I'm not sure why not. Congress brushes back the Pentagon all of the time. If the FBI comes in with an annual budget request, Congress can cut it by whatever amount it wants, or structure it in any way it wants. They can deny supplemental requests. They can change, marginally but importantly, the jurisdiction of the FBI, or even just consider changing it. They can certainly threaten to hold hearings on various matters relating to the FBI's unpopular boss.
To get any leverage, Congress would have to be able to prove a political conspiracy
That seems wrong. To get any leverage, Congress might have to imply political conspiracy. If Congresspeople can be tainted by a mere investigation, so can the FBI. Given the speed at which Congress can theoretically change Members, and given that Congresspeople have more direct, pursuasive contact with voters, the stain will attach much longer to the FBI than to Congress (or even an individual Congressman).
I'm a William-Winslow-Crosskey Congressional supremicist, and I've been hoping for a long time that Congress would be provoked into taking up the powers lying right in front of it. I was even ambivalent about the Gingrich revolution because of this: I hated the sinner but I loved the sin.
If I read Kleiman's update aright, he's not saying that the search was wrong as things stand, but that it sets a very bad precedent; and in order to stave off this precedent Congress ought to do a better job of policing itself, so the FBI doesn't have to.
If you're reading him correctly, and I think you are, then I don't see his point at all. If Congress polices its own effectively, then there will be no need for the FBI to come in. Who disagrees? But that doesn't speak to whether the FBI ought to be able to come in; it short-circuits the need for the FBI to use its ability to come in.
But Congress isn't policing its own here; what does he think he's arguing about?
Jack Balkin speaks for me on this topic (or rather, speaks to my frustrations, since I lack his, or LB's, or even Kleiman's legal chops). I'm just as wary of the FBI as Kleiman, but if Congress isn't willing to police its own--and it isn't apparently--then I'd rather someone dealt with the actual crimes first and then worry about the potential for intimidation.
They can change, marginally but importantly, the jurisdiction of the FBI, or even just consider changing it.
True, but it's marginal, and I don't think it would ever fly. The FBI was originally created within the Executive Branch, with no input from Congress. Congress has occasionally increased its jurisdiction by authorizing it to investigate different crimes (the Mann Act, for example), but I don't think they would manage to put together an effort to limit its jurisdiction. More importantly, even if they did it would be political suicide and Bush would never sign it. It would be so easy to spin from the other side you could use it to saw logs. "Congress wants YOU to suffer at the hands of CRIMINALS to protect their OWN FORTUNES!!1!" Many, many heads? Asploded. Plus Bush gets to blow the dust off that veto stamp.
Also, IANAL (nor a historian), whereas at least two other people here are, so I could be woefully incorrect.
Allowing this sort of search allows the FBI to intimidate Congress at will, and that's a bad, bad thing.
Well, if they're not doing anything wrong, they don't have anything to be afraid of, do they?
That's our new American motto, right?
Given the President we've got, I think that we should expect him to maximize the negative possibilities here.
I think that Kleiman is primarily arguing that we're fucked. I don't think that there's a positive alternative that he's proposing. He's just underlining one more disaster that most of us might not have thought of.
Bush is also using the FBI against other Congressmen suspected of leaking the NSA story, and the Jefferson case gives him cover.