Last week we learned that the Justice Department has discovered a possible effort to weaponize law enforcement against political enemies of former President Donald Trump. It was yet another unwelcome Justice Department surprise left behind by the prior occupants.
According to news reports, Justice Department lawyers used grand jury subpoenas to obtain communications data from members of Congress and their families during the early days of the Trump administration. Gag orders had prevented earlier disclosure. On Friday, Deputy Attorney General Lisa Monaco directed the inspector general to investigate whether Justice Department lawyers followed the strict internal guidelines that protect members of Congress from unwarranted scrutiny.
According to news reports, Justice Department lawyers used grand jury subpoenas to obtain communications data from members of Congress and their families.
This news comes shortly after reports that various news organizations were also the subjects of grand jury subpoenas in leak investigations conducted during the Trump administration. Those subpoenas sought phone records of journalists from The Washington Post, CNN and The New York Times. Inspector General Michael Horowitz said he will be looking into both matters.
The grand jury subpoenas were used to obtain records of members of Congress whom Trump directly criticized — Reps. Adam Schiff and Eric Swalwell, both of them Democrats from California who were vocal critics of Trump. Subpoenas were also used to obtain records of media outlets that Trump has criticized. On their face, these facts create the impression that Trump was simply going after a sort of enemies list. But the news also suggests that even if there were a legitimate basis for seeking the records, the Justice Department failed to comply with its own policies.
Using grand jury subpoenas to investigate members of Congress or the news media is not inherently illegal, though President Joe Biden and the Justice Department have recently vowed to stop using them against the media in leak cases as a matter of policy. On the other hand, disclosing classified information that is harmful to our national security, like troop locations, is a crime. One can imagine the damage that might occur if a member of Congress were to disclose sensitive security plans for the U.S. Capitol to insurrectionists. Members of Congress and the media are not immune from being charged criminally with violating these laws.
But using subpoenas or other legal processes against public officials or reporters should be treated with the utmost sensitivity. After Watergate and the FBI surveillance abuses of the 1960s and the 1970s, the Justice Department has followed strict guidelines when investigating any group or person. An investigation may not be opened against anyone as part of a fishing expedition for misconduct or based purely on the subject’s “political association, activities or beliefs.”
If an investigative activity involves a member of Congress, additional policies apply. The prosecutor must first consult with the Public Integrity Section of the Justice Department in Washington in all investigations involving members of Congress or their staffs. The reasons for these extra precautions are obvious — our constitutional structure is based on the separation of powers between the executive and legislative branches. Abusing legal tools against a co-equal branch of government would disrupt the balance created by the framers of the Constitution. In addition, prosecutors are required to alert the deputy attorney general about all “sensitive matters.” Obtaining the records of members of Congress, their family members and their staffs would certainly qualify.
Similarly, when reporters’ records are sought, Justice Department policy says the use of law enforcement tools to obtain news media records is considered an “extraordinary” measure. Justice Department policy requires attorney general approval and prior consultation with the media outlet unless such notice would pose a “clear and substantial threat” to the integrity of the investigation, national security or public safety. The purpose of this requirement is to strike the proper balance between performing the Justice Department’s law enforcement mission and safeguarding the First Amendment — essential to government accountability. So far, both Jeff Sessions and William Barr, who were attorney general during the Trump administration, have denied awareness of these subpoenas, as has Rod Rosenstein, the deputy attorney general under Sessions. We have not heard from Matthew Whitaker, who was acting attorney general from late 2018 through early 2019. The denials, if accurate, suggest that the case prosecutors may have failed to comply with the requirement to provide the attorney general with notice. The purpose of this requirement is to strike the proper balance between performing the Justice Department’s law enforcement mission and safeguarding the First Amendment. It is possible that the collection of the lawmakers’ data was incidental; that is, that the subpoenas were used to obtain the names of the subscribers to phone numbers that were called by some other person who is the target of the investigation. Even so, the receipt of such sensitive information should have immediately triggered a briefing to Justice Department leadership. No government leader wants to learn about such potentially explosive news from a reporter. The inspector general’s investigation is an important step in uncovering the facts and holding accountable any prosecutors who may have abused their considerable powers. While investigating and prosecuting disclosures of classified information are appropriate in certain circumstances, investigations must be conducted with the utmost care to ensure that the executive branch does not intrude upon the legislative branch or the news media, both of which perform important essential watchdog roles in our democracy. For prosecutors, subpoenas are a tool, not a weapon.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
