During the Trump administration, the Department of Justice (DOJ) secretly obtained phone and text message records from 43 congressional staffers and two lawmakers between 2017 and 2018. This action, part of a broader investigation into leaked classified information, is now under scrutiny following a new report by the DOJ’s Inspector General Michael Horowitz. The report reveals that the investigation was much more extensive than previously known, raising concerns over the potential abuse of power and the erosion of constitutional safeguards.
Scope and Findings of the Investigation
The Inspector General’s report emphasizes that, while there is no evidence that political motives drove the DOJ’s actions, the department failed to fully respect the separation of powers between the executive and legislative branches. The DOJ targeted individuals who had lawful access to classified information but lacked direct evidence linking them to the leaks. Among those affected were staffers working for the Republican-led House Intelligence Committee, including Kash Patel, as well as Democratic Representatives Adam Schiff and Eric Swalwell, both of whom were members of the committee at the time.
Additionally, prosecutors obtained communications records from journalists at The Washington Post, The New York Times, and CNN. According to the report, subpoenas were issued to third-party providers such as Apple, with gag orders placed to prevent the individuals involved from learning their records were being seized.
Concerns Over Congressional Oversight
The investigation’s impact on congressional oversight has drawn significant criticism. Horowitz pointed out that the DOJ’s actions threatened Congress’s ability to conduct independent oversight of the executive branch. By seizing communications records based on the timing and access to classified information, the DOJ’s actions risked undermining the legislative branch’s constitutional role.
These investigations, which did not lead to any criminal charges, were based on non-content communication records. These logs only reveal who was communicating with whom, not the content of the conversations. However, the move raised red flags over the DOJ’s respect for the constitutional separation of powers and its potential to intimidate lawmakers.
Targeting of Journalists
The report also highlights the DOJ’s mishandling of journalists’ communications records. Secretly seizing phone logs from reporters at major media outlets violated DOJ’s own policies regarding the protection of press freedom. These seizures were part of investigations into leaks surrounding the FBI’s probe into alleged Russian interference in the 2016 election.
The report revealed that former Attorney General Bill Barr personally approved the subpoenas for journalists’ records but did so without consulting the necessary internal committee, violating established procedures. Barr also declined to cooperate with the Inspector General’s investigation, further fueling concerns over the handling of these cases.
Legal and Ethical Issues Raised
The report identifies several procedural failures in how the DOJ handled these sensitive investigations. For instance, prosecutors did not inform department leadership that they were targeting members of Congress. In one instance, they failed to secure the required certification from the Director of National Intelligence. Critics argue that this oversight highlights serious gaps in accountability and transparency.
Senator Ron Wyden (D-Ore.) expressed concern, stating that the lack of safeguards allowed the DOJ to potentially spy on Congress. “These abuses demonstrate how fragile the checks and balances on executive power really are,” he said.
The DOJ’s actions also raised questions about transparency, as non-disclosure orders were used in 40 cases involving congressional staffers, keeping those affected in the dark about the seizures. In many cases, prosecutors did not specify which records they were targeting.
Reform and Policy Changes
In response to the public backlash, the Biden administration has introduced stricter guidelines to prevent the unwarranted surveillance of journalists and members of Congress. The new policy requires the DOJ to notify news organizations when reporters’ communications are subpoenaed, except in emergencies.
Despite these reforms, some critics argue that these safeguards could easily be overturned by a future administration. Kash Patel, a former congressional staffer and key figure in the leak investigations, has expressed support for more aggressive actions against journalists, underscoring the ongoing tension between national security concerns and constitutional protections.
