Though former President Donald Trump’s term ended in January, his administration’s penchant for scandal lives on. In recent weeks, the Justice Department told reporters and news outlets that it had tried to obtain their email and phone records during a Trump-era effort to crack down on damaging leaks that continued into the Biden administration’s first few months. President Joe Biden responded by publicly avowing that his administration wouldn’t try to surveil journalists in the future.
Even more troubling revelations emerged on Thursday. The New York Times reported that the Trump Justice Department had subpoenaed metadata records from House Intelligence Committee Chairman Adam Schiff, a prominent Democrat and frequent target of Trump’s rage, as well as fellow committee member Eric Swalwell. Also swept up in the leak investigations were multiple members of the House Intelligence Committee’s staff and their families. According to the Times, one of the family members was a minor.
The disclosures shed some light on an investigative effort that was both high profile and under the radar: DOJ’s efforts under former Attorneys General Jeff Sessions and William Barr to root out who had been leaking classified information to reporters that proved to be politically damaging for President Trump. There is an urgent need to shed more light on this murky and potentially anti-constitutional process.
According to the Times and The Washington Post, DOJ’s probes into whether House Intelligence members and staffers were behind the leaks began under Sessions in 2017. At the time, the Trump administration was beset by regular disclosures about Trump’s inner circle’s interactions with Russian officials and his decision to fire former FBI Director James Comey. Trump himself often publicly demanded that Sessions and other Justice Department officials ramp up their efforts to uncover the source of the leaks.
One particular target of Trump’s rage was Schiff, a California Democrat who would later become Trump’s prosecutor during his first impeachment trial. In a series of tweets in 2018, Trump described Schiff as “one of the biggest liars and leakers in Washington” and “the leakin’ monster of no control.” His posts also included calls to action: “Adam leaves closed committee hearings to illegally leak confidential information,” he wrote on Twitter on February 5, 2018. “Must be stopped!”
According to the Times and the Post, the leak investigations began to fade away at some point in 2018, when the effort failed to turn up anything substantial. They reportedly intensified again after Barr’s confirmation to replace Sessions in early 2019, with Barr installing a hand-picked federal prosecutor from New Jersey to oversee them. In theory, surveilling high-ranking members of Congress from another party—particularly those tasked with overseeing the intelligence community—should not be undertaken without serious evidence of criminal behavior, if at all. But it’s far from clear whether these moves had even a basic level of justification.
When the subpoenas became public this week, Schiff accused Trump of abusing his office once again. “President Trump repeatedly and flagrantly demanded that the Department of Justice carry out his political will, and tried to use the department as a cudgel against his political opponents and members of the media,” he said in a statement on Thursday. “It is increasingly apparent that those demands did not fall on deaf ears. The politicization of the department and the attacks on the rule of law are among the most dangerous assaults on our democracy carried out by the former president.”
Democratic leaders in Congress called the reports “shocking,” while vowing to investigate further. “Former Attorneys General Barr and Sessions and other officials who were involved must testify before the Senate Judiciary Committee under oath,” Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chairman Dick Durbin said in a statement on Friday. “If they refuse, they are subject to being subpoenaed and compelled to testify under oath.” Both men also demanded that the Justice Department provide more information about the searches to Congress.
Federal agents have occasionally obtained search warrants against individual members of Congress as part of legitimate criminal probes, usually involving corruption or fraud. In 2014, the National Security Agency obliquely refused to deny that lawmakers’ data had been swept up in its mass surveillance programs. In at least one known instance, NSA analysts captured and transcribed conversations with a member of Congress: Jane Harmon, a former Democratic ranking member of the House Intelligence Committee, whose calls with pro-Israel lobbyists who were under investigation for espionage were revealed in 2009.
But the subpoenas against Schiff and other House Intelligence personnel are extraordinary for a few reasons. They are among the only known instances in the post-Watergate era where the Justice Department targeted specific members of Congress for surveillance. Lawmakers aren’t above the law, but the targeting of one of the president’s most prominent political opponents on unclear grounds at best raises serious questions about whether the Justice Department engaged in politically motivated snooping to satisfy an angry president and his underlings.
The revelations are a key test for Attorney General Merrick Garland, who has frustrated some progressives in recent weeks for not reversing—and in some cases, actively defending—some of the Trump Justice Department’s controversial decisions and policies. The Justice Department’s inspector general announced on Friday that he would be conducting his own inquiry of the leak investigations at the behest of Deputy Attorney General Lisa Monaco, Garland’s second-in-command. That’s a positive sign that DOJ’s current leadership is taking this seriously and might diverge from its less than cooperative approach to Congress in other Trump-related matters.
More than anything else, however, this is a test for Congress—and it’s likely one the institution won’t pass. When the FBI raided a Democratic Louisiana representative’s congressional office in 2006 as part of a corruption investigation, the breach of congressional territory drew intense criticism from both sides of the aisle, including from Republican leaders in the House and Senate. No such outcry emerged from congressional Republicans after Thursday’s revelations, even though DOJ’s actions were apparently even less justified this time.
Then again, the GOP refused to seek accountability for Trump when he incited a mob to attack Congress, so its silence on a mere dubious subpoena isn’t as much of a surprise. The test instead falls to Democrats. Will they determine exactly who was responsible for this and how it came about? Will they defend the legislature—and by extension, themselves—from apparent executive overreach? Will they pressure Garland and the Biden Justice Department to cooperate? The stakes are obvious if they don’t. As with so many of Trumpworld’s misdeeds, inaction will only lead to repetition.