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Can you imagine the danger to our republic if executive branch agencies could secretly, for months on end, and without any clear and indisputable justification, surveil the very people in Congress conducting oversight of those agencies?
That chilling constitutional nightmare actually happened.
And we’re only getting the details about the separation-of-powers-eviscerating, civil liberties-undermining, and transparency-imperiling activity seven years after it started.
The revelations come in a recently released Justice Department Inspector General report.
Like much of this corrupt activity, the story begins with Russiagate.
In the spring and summer of 2017 – the first year of the Trump presidency – CNN, the New York Times, and the Washington Post published articles containing classified information concerning Trump and Russia.
Among the unauthorized disclosures to emerge was that a FISA warrant had been issued to surveil Trump foreign policy adviser Carter Page. The warrants would be renewed four times, despite the fact they should’ve never been issued, and that they were obtained in part by perpetrating a fraud on the FISA court.
Page was framed as a Russian agent by omitting critical exculpatory information and based on a phony Steele dossier that federal investigators could never corroborate, for starters. One official was even prosecuted for doctoring information that went into his FISA warrant application.
Page’s reputation was destroyed, and his rights violated.
Meanwhile, the political impact was devastating. The revelations added smoke to the phony Trump-Russia collusion fire that would consume the first two years of his administration.
Authorities went on a mole hunt for the leaker of unauthorized disclosures.
Between 2017 and 2018, prosecutors issued subpoenas for non-content records for phone numbers and email addresses covering 2 members of Congress and 43 staffers – Democrats and Republicans alike – on grounds they may have accessed to the leaked classified information before it made the papers.
The justification was simply in most cases “the close proximity in time between that access and the subsequent publication of the news articles,” the IG found.
These records included information like text message logs, email recipient addresses, and call detail records indicating who initiated communications, with which numbers, dates, times, durations, etc.
It was a map to these peoples’ lives.
In some instances the feds sought non-disclosure orders from courts too. The NDOs prevented communications companies from apprising the congressmen and staffers that their records had been subpoenaed. In other words, they ensured the surveilled were in the dark.
The DOJ obtained 40 NDOs, approximately 30 of which were renewed at least once, and most of which were repeatedly renewed, some extending up to 4 years!
Among those targeted was House Intel Committee investigator for the then-Republican Representative Devin Nunes-Led Committee Kash Patel – the man slated to become FBI Director, and who repeatedly bumped up against DOJ leaders in his dogged investigation of the Russiagate investigators.
Foster and Patel didn’t even know their records had been subpoenaed until the Biden years, when the communications companies were allowed to disclose the subpoenas had been sought.
To make things more perverse, the DOJ in its applications for the NDOs did not disclose that the subpoenas sought records from members of congress or staffers, and, according to the IG “relied on general assertions about the need for non-disclosure rather than on case-specific justifications. Department policy at the time did not require including information in applications about whose records are at issue.”
Too, policy permitted and still permits “prosecutors to make boilerplate statements in NDO applications.”
When news reports emerged during the Biden years of what had transpired, DOJ issued new congressional investigations policies that ostensibly required greater scrutiny of and higher-level approvals for subpoenas and NDOs, while still not requiring approval from or notification of the attorney general or deputy attorney general – as if that itself would prevent malfeasance.
Only after reviewing the IG report in September of this year did DOJ even create rules requiring that prosecutors disclose to courts when NDOs concern a congressional office or staffer.
What’s more, members of the media are given greater protections than members of the legislative branch. Unlike the DOJ’s News Media Policy, the Congressional Investigations Policy contains no “exhaustion requirement” for issuing subpoenas. Prosecutors are not required to exhaust “all other reasonable means of identifying the sources of the unauthorized disclosures,” prior to seeking a subpoena. Only then, in the case of news media, must the feds request “Attorney General authorization.”
It’s not even abundantly clear, the IG reports, that illegal leaks are explicitly covered by DOJ’s Congressional Investigations Policy!
The IG concluded that though it could not find evidence of “retaliatory or political motivation” for the issuance of the subpoenas, efforts like these risk “chilling Congress’s ability to conduct oversight of the executive branch,” and at minimum create “the appearance of inappropriate interference” by that branch “in legitimate oversight activity.”
One need not think hard about how a dishonest or corrupt national security apparatus could use the predicate of an illegal leak to spy on political foes.
Even the possibility that could happen though, as the IG suggests, is corrosive to our system.
And it’s worth noting in this case: No leaker was ever charged.
Kash Patel and the Attorney General-designate Pam Bondi are going to have their work cut out for them reforming an FBI and DOJ that have damaged their credibility and with it undermined Americans’ rights en masse.
This episode is just one more example of it.
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