Trump-era Justice Department subpoenaed congressional staffers, watchdog finds

The Justice Department’s internal watchdog found no evidence of political motivation by federal prosecutors who subpoenaed the communication records of two Democratic members of Congress, congressional staffers as well as reporters as part of leak investigations during the first Trump administration.

But a new report from Inspector General Michael Horowitz’s office said the watchdog did find the leak investigations targeted a far larger number of congressional staffers than previously known: 43 individuals, almost evenly divided between Republicans and Democrats.

The report on the leak investigations by the Justice Department during Donald Trump’s first term in office come just weeks ahead of his return to the White House.

In the new report, the inspector general’s office examined investigations into the sources of leaked classified information that appeared in news articles published in 2017. Some of the stories related to possible ties between the 2016 Trump presidential campaign and Russia.

In an effort identify the sources of the leaked information, prosecutors secretly subpoenaed the communication records, including phone and email metadata but not the content itself, for two congressmen, 43 staffers as well as eight reporters who worked at CNN, The New York Times and The Washington Post.

The two members of Congress are not identified in the report but are known to be Rep. Adam Schiff, who was the top Democrat on the House Intelligence Committee at the time, and Rep. Eric Swalwell, another Democrat on the panel. Both lawmakers were sharp critics of then-President Trump, and they raised concerns about being possibly targeted by investigators for political reasons.

Of the 43 congressional staffers whose communications were subpoenaed, the report says that of 21 were Democrats, 20 were Republicans and two worked in nonpartisan positions.

The lawmakers and staffers all had access to the classified information contained in news articles as part of their congressional oversight responsibilities, the report said. They were given access to the classified materials close in time to when the information leaked to the media.

“As a result, dozens of congressional staffers became part of the subject pool in a federal criminal investigation for nothing more than performing constitutionally authorized oversight of the executive branch,” the report said.

The inspector general’s office did not find “any evidence of retaliatory or political motivation by the career prosecutors who issued the compulsory process for non-content records that we reviewed.”

But it noted that such subpoenas “risks chilling Congress’s ability to conduct oversight” because it exposes congressional officials to potentially having their records reviewed for carrying out their constitutional duties.

The subpoenas were issued to third-party service providers, and included gag orders preventing them from notifying the congressional officials that their records had been subpoenaed.

The report also said that the Justice Department did not have a policy at the time that addressed the use of such subpoenas to obtain communication records from congressional officials.

The department created rules since then to strengthen consultation and approval requirements to take such steps, although the incoming administration could revise the requirements as it sees fit.

Reporters were subpoenaed, too

As part of the leak investigations, prosecutors also subpoenaed the communications records of eight reporters at three media outlet: CNN, The New York Times and The Washington Post. Like with congressional officials, the third-party service providers were barred from disclosing that the records had been subpoenaed.

That raised concerns about a possible chilling effect on the media’s ability to report on sensitive government issues.

The inspector general’s report says the Justice Department complied with some but not all of its own procedures related to investigations involving the media. The department failed to convene a committee to consider the subpoena requests beforehand, and it failed to obtain a required certification from the Director of national Intelligence in one of the investigations.

Under the Biden administration, Attorney General Merrick Garland strengthened the Justice Department’s policy relating to the news media. He barred the use of compulsory legal process, such as subpoenas, for obtaining reporters’ communication records, except in limited circumstances.

These rules, too, can be revised from administration to administration.