NYT: Trump-era DoJ secretly subpoenaed communications records of Schiff, Swalwell

AP Photo/Manuel Balce Ceneta

Get ready for some more contentious hearings in the House over Russiagate — but not about collusion. Apple recently informed two Democrats on the panel that they had been the target of secret search warrants from the Department of Justice in an aggressive leak investigation. A gag order kept Apple from alerting them before now, the New York Times reported last night:

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had been subpoenaed.

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

Hoo boy. It’s not illegal for the executive branch to get search warrants on members of the legislative branch, but there are good reasons for its rarity. Normally that would only take place in the context of a corruption probe, and then only sparingly to avoid the obvious constitutional implications of the executive branch essentially spying on the operations of a co-equal branch of government. Given that the House Intelligence Committee was investigating Donald Trump and his campaign at the time, this at least has the smell of either retaliation or surveillance of the probe, either of which would constitute an abuse of power. At the very least, this revelation plus the earlier reveal of aggressive search warrants on reporters give the impression that the Trump-era DoJ was on a world-record fishing expedition.

Of course, a judge signed off on these warrants, so one has to wonder how the Trump-era prosecutors managed that feat. Leaks of classified information are most definitely a crime, but search warrants for members of Congress should require a very high threshold for reasonable suspicion of the members themselves, and not just to set up a trap for others passing material to committee members. Did prosecutors have any evidence for a reasonable suspicion of illegal activity on the part of Schiff or Swalwell? Or did they buffalo a judge into the warrants to set that kind of a trap? If those warrant applications turn out to be substantive and true, this  story might take on a completely different tenor.

Had that been the case, though, why didn’t the DoJ prosecute Schiff or Swalwell, or any of their staffers? They had two bites of this apple, although the second bite by Barr was aimed lower:

It was not immediately clear what specific leak investigators were concerned about in seeking the records of the congressmen and their staff, or who they might have suspected of wrongdoing. The move to get lawmakers’ records occurred when Sessions was attorney general, but the investigation continued under Attorney General William P. Barr, two people familiar with the matter said.

During Barr’s time in command, these people said, the lawmakers were not considered targets of any leak probe, though investigators had suspicions about congressional staffers.

We can certainly bet that we’ll find out the answers to these questions. Schiff still chairs the House Intelligence Committee, and he wants an investigation into this investigation. For the moment, he’s willing to let the DoJ look into it on their own:

Rep. Adam Schiff, chair of the House Intelligence Committee, called for an inspector general investigation of the Trump Justice Department on Thursday after a report said that his phone records, along with those of aides and another member of the committee, had been seized — what he condemned as a “terrible abuse of power.”

“It also makes the Department of Justice just a fully owned subsidiary of the president’s personal legal interests and political interests,” the California Democrat told MSNBC’s Rachel Maddow. …

“We have seen this through the Justice Department by Donald Trump, whether it was the reason he was impeached, for trying to go after Vice President Biden at the time, or just other efforts, you know, through the Mueller investigation,” Swalwell said. “And I support Chairman Schiff’s call for an inspector general report into not only this conduct, but other conduct that was corrupt by Donald Trump and those who worked for him.”

When Maddow asked Schiff on Thursday whether Congress should also investigate the department’s seizing of the records, Schiff said it should, adding that Attorney General Merrick Garland would be questioned on the matter. He said he himself shouldn’t have a role in the investigation, given that his records were subpoenaed, but said other committees in Congress could exercise oversight.

Presumably that would go to the House Oversight Committee, currently chaired by Carolyn Maloney (D-NY). In fact, we can pretty much bet that Maloney will seize on this opportunity to dig into the NYT revelation. If it turns out to be accurate, though, there’s at least some risk involved. If Schiff and Swalwell really did leak classified information, an independent probe might end up doing more damage to the Democrats than it will do to Trump or prosecutors. The original warrant applications will certainly make for interesting reading.