The House Judiciary Committee has issued a subpoena to Attorney General Merrick Garland, seeking information regarding the Department of Justice’s (DOJ) demand for the communications of congressional staff during the Trump administration.
This move follows an initial request from Chair Jim Jordan (R-OH), who sought information about a 2017 subpoena to Google for the communications of a former Senate Judiciary staffer and other congressional aides.
The subpoena raises concerns about the Executive Branch’s use of law enforcement authority to access private communications of Legislative Branch employees engaged in constitutional oversight activities.
The Background
In October, Jason Foster, an investigative counsel for the House Judiciary Committee, revealed that his communications, along with those of other staffers, were being sought as part of the DOJ’s oversight of the 2016 election investigation and the decision to surveil a Trump campaign staffer.
The New York Times reported in 2021 that the DOJ, under the Trump administration, had subpoenaed communications companies for private data on both congressional staffers and members, including Democratic Representatives Adam Schiff and Eric Swalwell.
These subpoenas are currently under investigation by the inspector general following a referral by Attorney General Garland.
The Subpoena
Chair Jim Jordan’s letter to Attorney General Garland asserts that the subpoenas indicate the Executive Branch’s misuse of its law enforcement authority to access and search the private communications of Legislative Branch employees involved in oversight of the DOJ’s investigative actions.
The subpoena issued by the House Judiciary Committee seeks all DOJ documents related to requests for communications from members of Congress or their staff from any telecommunications company. Despite the subpoena, the Justice Department has not yet provided a comment on the matter.
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The DOJ’s Response
In a letter to Jim Jordan, the Justice Department explained that Jason Foster’s communications were sought as part of an investigation into the leak of classified information.
The investigation was initiated after a referral for a criminal investigation was made to the National Security Division by a member of the U.S. Intelligence Community.
The DOJ emphasized that the information had been shared with both executive and legislative branch employees. The department also noted that it had to approach Congress for information protected by the Speech and Debate Clause, and this approach was approved by the Senate in 2018.
James Wolfe, the former director of security for the Senate Intelligence Committee, subsequently pleaded guilty to lying to the FBI and served two months in prison.
Aggressive Steps to Track Leakers
During the Trump administration, several aggressive steps were taken to track down leakers, including seeking the communications of journalists. In both the cases of staffers and journalists, the Justice Department pursued gag orders that prevented companies like Google from alerting clients about the retrieval of their records.
However, the Biden administration reversed course on the use of gag orders six months into its term. This episode prompted the Justice Department to draft new policies for seeking subpoenas from members of Congress, their staff, and reporters.
The guidelines released in November for subpoenas of members or their staff now require additional consultation and approvals from DOJ’s Public Integrity Section.
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The House Judiciary Committee’s subpoena of Attorney General Merrick Garland sheds light on the DOJ’s demand for the communications of congressional staff during the Trump administration.
Chair Jim Jordan’s concerns about the Executive Branch’s use of law enforcement authority for accessing private communications of Legislative Branch employees engaged in constitutional oversight activities are at the center of this issue.
The response from the Justice Department indicates that the communications were sought as part of an investigation into a leak of classified information.
The aggressive steps taken during the Trump administration to track leakers and the subsequent policy changes highlight the need for clear guidelines when seeking subpoenas from members of Congress, their staff, and journalists.
As this investigation unfolds, it will likely shape future practices and policies regarding the protection of private communications and constitutional oversight activities.
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