The Trump Justice Department in 2017 and early 2018 issued subpoenas to Apple to obtain the communications records of at least two Democratic members of the House Intelligence Committee, Reps. Adam Schiff (D-CA) and Eric Swalwell (D-CA). According to The New York Times, DOJ prosecutors attempting to determine who leaked classified information to the media about Russiagate suspected the two House Democrats were the culprits, and to prove that, they obtained their communications records as well as those of family members, including minor children.
A DOJ leak investigation aimed at sitting members of Congress is highly unusual. Both the Obama and Trump administrations, in a hunt for leakers, created controversy by obtaining the communications records of journalists, including — in the case of the Obama DOJ — the family members of those journalists. But investigating members of the House Intelligence Committee for leaking crimes — as opposed to corruption or other standard criminal charges — can present different dangers. Neither Congressman was charged with any crimes and the investigation reportedly bore no fruit.
The two House Democrats, among the most fanatical disseminators of baseless Russiagate conspiracies and long known to serve as anonymous sources of leaks to liberal media outlets, reacted with predictable outrage. “This baseless investigation, while now closed, is yet another example of Trump's corrupt weaponization of justice,” Schiff intoned on Thursday night. As difficult as it is, Swalwell, as he often does, found a way to be even more melodramatic than Schiff: “Like many of the world’s most despicable dictators, former President Trump showed an utter disdain for our democracy and the rule of law.”
Investigating possible crimes — such as leaking classified information — is the job of the Justice Department. To accomplish that, FBI agents and prosecutors often obtain personal communications records about their suspects. But invading the communications records of journalists, as both the Obama and Trump DOJ did, can create serious threats to press freedom and the possibility of abuse and retaliation. The same is true for invading the communications records of members of the legislative branch, particularly ones hostile to the president. An investigation is certainly warranted to determine the propriety of these subpoenas.
But like so many politicians before them, Schiff and Swalwell have zero credibility to object to this targeting. When it comes to ordinary Americans, both have been long-time champions of expanding domestic spying powers and blocking efforts at reform designed to curb abuses of the type they claim took place here.
From the start of the Trump administration, Schiff and Swalwell were among the lawmakers most shrilly depicting Trump as some sort of Nazi-like figure bent on fascistic control of the United States. Yet their actions were sharply at odds with that cable-friendly rhetoric, as they repeatedly voted to preserve and expand the military budget, war powers and spying authorities of the New Hitler.
Perhaps the most relevant example was a 2018 amendment introduced by then-Rep. Justin Amash (R-MI), the long-time privacy advocate who had repeatedly sought to rein in the U.S. Government's domestic spying powers and impose safeguards as a way to curb abuses. Amash's amendment was part of a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the NSA to spy on the communications of American citizens without a warrant as long as it can claim that their target is a foreign nation and that they only “incidentally” listened in on the calls or read the emails of citizens.
That 2008 law was enacted with bipartisan support to retroactively legalize the clearly illegal Bush/Cheney program of warrantless domestic surveillance. That law also authorizes the FBI to search NSA-collected communications of Americans without a warrant for use in its criminal investigations.
Amash's 2018 amendment was designed to prevent those abuses and rein in the power of the Executive Branch to spy on Americans. Its key provision was that it “required federal law enforcement agents [including those with the DOJ/FBI] to get a warrant before searching NSA data for information on Americans.”
It appeared that Amash had secured enough GOP votes to ensure passage of his reform bill. Fifty-seven House Republicans — part of the anti-spying wing of that party — announced their intention to support Amash's bill. Had the 193-member House Democratic caucus delivered its votes for Amash's amendment, it would have passed, and the U.S. Government's spying powers could have finally been reined in, with meaningful safeguards imposed.
Instead, then-House Minority Leader Nancy Pelosi announced her opposition to Amash's amendment. She then convinced just enough of her caucus — fifty-five members — to join with the GOP majority to defeat Amash's bill. Among those who joined with Pelosi and the pro-spying wing of the GOP led by then-House Speaker Paul Ryan (R-WI) were Adam Schiff and Eric Swalwell. In other words, while they were basking in the adoration of MSNBC and CNN hosts for calling Trump a dictator, they were joining with Pelosi and the GOP Speaker of the House, Paul Ryan, to ensure that no limits were imposed on Trump’s powers of domestic spying.