If anything, the two Trump-hostile congressmen were bit players and not targets.
If anything, the two Trump-hostile congressmen were bit players and not targets.
This is the third in a series of five columns on the recent revelations that the Justice Department, beginning in the Trump administration and continuing into the Biden administration, conducted investigations of leaks of sensitive information by government officials to members of the media. Those investigations reportedly involve subpoenas for communications records of several journalists, as well as other controversial information demands by investigators. Follow these links for the first and second columns in the series.
W hen it was recently revealed that the Justice Department had aggressively investigated government leaks of classified information that damaged the Trump administration, it was the focus on journalists that drew attention and outrage — the latter, naturally, by reporters themselves.
Another source of intrigue, though, is the revelation that investigators may have examined communication records of two prominent and notoriously Trump-hostile House Democrats, both from California. They are Adam Schiff, the Intelligence Committee chairman who ran the House’s first Trump impeachment investigation, and Eric Swalwell, a member of that committee and of the team of House “managers” (in essence, prosecutors) at Trump’s second Senate impeachment trial.
At first blush, this seems suspicious. It is likely, however, that there was a valid justification for the chain of events that resulted in records pertaining to Schiff and Swalwell coming to investigators’ attention. Further, while executive-branch investigations that implicate members of Congress potentially raise fraught constitutional issues, it is improbable that such weighty matters will be addressed in this scenario, where it appears that Schiff and Swalwell were bit players, not targets.
Schiff, or course, has long been portrayed in some conservative media and by Trump as an incorrigible leaker (at one point, Trump intelligence director John Ratcliffe threatened to curtail briefings to Schiff’s committee, the practices of which Ratcliffe knew well, having served on it as a Republican congressman). As for Swalwell, he was sufficiently careless to be ensnared by a suspected Chinese spy. Both Schiff and Swalwell nevertheless still hold their Intelligence Committee seats. They staunchly deny mishandling classified information, and it has never been proved that they have done so.
Because these congressmen are Trump political nemeses, the obvious fear is that they could have been targeted for investigation out of vengeance, not due to national security. If true, that would be an abuse of power — the exploitation of investigative authority to harass partisan foes.
A profound constitutional question also hovers. Any executive investigation of the Article II branch triggers separation-of-powers questions: Congress has constitutional immunity from prosecution when engaged in legislative acts, which are defined elastically. The executive is also on thin ice whenever it exploits investigative power on Capitol Hill itself. Still, lawmakers are not insulated from prosecution if they violate the law in a manner clearly unrelated to their governmental duties.
Since the era of President George Washington, the executive has asserted broad authority to classify information as secret and to restrict even Congress’s ability to access and disseminate it. While some of this executive authority has been codified in statutory law, Congress — which created the intelligence agencies and conducts oversight of them — has never accepted the principle that the president has such unilateral control over government intelligence. Few doubt that a congressman who publicly read a classified report into the Congressional Record would be immune from prosecution. How bound are the people’s representatives by the executive’s decisions to classify and restrict disclosure of intelligence information? It is not clear.
According to reporting, the Trump Justice Department was not eager to test these waters. Former Attorney General Bill Barr has told Politico that he was “not aware of any congressman’s records being sought in a leak case.” Barr’s predecessor in the Trump administration, Jeff Sessions, has indicated that he, too, was unaware.
Clearly, Apple and Microsoft were subpoenaed by a federal grand jury in 2017 and 2018 for subscriber information and other data related to email accounts of people said to be tied to the committee. The high likelihood, then, is that the Justice Department stumbled into the Schiff and Swalwell email information — but not the substance of their conversations — while investigating one or more congressional staffers in connection with leaks.
The New York Times reports that a former committee staff member, Michael Bahar, was interviewed by the FBI last year. As an insightful report in the Dispatch explains, when investigators scrutinize a suspect, they subpoena communications-records information to try to identify with whom the suspect was in contact and when. They generally do not know the identity of the person behind the phone number or email address — finding out is the point of the subpoena.
If investigators were targeting a Hill staffer, especially on the intel committee, it would not be surprising that phone numbers or emails of committee members would pop up in subpoenaed records. That would not mean the Justice Department was investigating the members.
Sober congressional hearings that explored the proper uses and abuses of classified information, as well as lawmakers’ important oversight role, could be constructive. Among other things, such hearings would show potential intelligence sources and anti-American regimes that the political branches are unified on the need to protect secrets and defend the nation.
Alas, today’s Congress is rarely up to serious business. Democrats remain Trump-deranged, five months after the former president left office, so they are of course hysterically claiming that Sessions and Barr targeted congressional Democrats. On that score, it is worth noting that the Biden Justice Department has not accused its predecessor of wrongdoing and actually defended the gag orders issued to protect the leak investigations, which is why we’re hearing about them only now.
It is plain to see the politics at work here. Democrats want to fold the latest revelations into the general indictment of Trump that they’d like to run on in 2022. No, he is not on the ballot, but Democrats’ campaigning as if he were may be a better strategy than trying to defend Biden’s surrender to the hard Left. Meanwhile, Trump fans want to keep litigating Russiagate and the role that Schiff, Swalwell, and other congressional Democrats played in it, even though Republican sights should now be trained on the incumbent president’s policies, not the last president’s travails.
At the direction of current DOJ leadership, the subpoenas implicating the House Intelligence Committee, like all the leak investigations currently in dispute, have been referred to Justice Department inspector general Michael Horowitz. He has proved himself to be an honest broker, and he is nothing if not thorough. He will surely produce an edifying report . . . though it will take a long time.