The U.S. Justice Department’s internal watchdog said on Tuesday that prosecutors’ decision to subpoena phone and email records from members of Congress and their staff during president-elect Donald Trump’s first term risked a chilling effect on congressional oversight.
The department’s Office of Inspector General found that records were subpoenaed from two Democratic members of Congress and 43 staffers, roughly evenly split between Democrats and Republicans, as prosecutors investigated leaks of classified information to media outlets in 2017 and 2018.
The subpoenas came not long after the Washington Post in July 2017 reported on a meeting between Russia’s then-ambassador to the United States Sergey I. Kislyak and Trump campaign adviser Jeff Sessions to discuss Trump’s 2016 presidential campaign.
The article cited intelligence intercepts as a source of information to confirm the meeting took place.
Among the 43 staffers whose records were sought was Trump’s pick as FBI director, Kash Patel, who at the time worked for Republican Devin Nunes on the House Intelligence Committee. Patel was later notified about the subpoena by Google and sued the FBI and Justice Department over it.
Democratic Representative Adam Schiff, the former head of the Intelligence Committee who was elected to the Senate last month, and committee member Representative Eric Swalwell previously revealed that their records had been subpoenaed.
The investigations began at a time when Trump, who will return to office on Jan. 20, railed against leaks to the news media over alleged ties between his 2016 campaign and the Russian government.
A 2017 U.S. intelligence report said Russian President Vladimir Putin had directed a sophisticated influence campaign to denigrate Democratic candidate Hillary Clinton and support Trump in the 2016 race for the White House. The Kremlin denied meddling and Trump denied any collusion with Russia during that campaign.
Trump has vowed to use the Justice Department to pursue political adversaries and officials who have investigated him during his second term.
The New York Times reported that four of its reporters had their information subpoenaed over a report on former FBI director James Comey’s handling of investigations during the 2016 campaign.
While the watchdog’s investigation found no evidence of political motive, it concluded that “dozens of congressional staffers became part of the subject pool in a federal criminal investigation for doing nothing more than performing constitutionally authorized oversight of the executive branch.”
The report concluded that the subpoenas created at least the “appearance of inappropriate interference” by the Justice Department into the work of Congress.
Congressional committees conducted their own probes into Russian interference in the 2016 election and frequently have access to classified information as part of their oversight work.
No charges were brought as a result of the investigations, which the report found are now closed.
Media records sought
Prosecutors also obtained email or phone records from eight reporters at three major news outlets — the New York Times, the Washington Post and CNN — as part of those probes, according to the report.
The subpoenas were issued to third-party technology and phone companies and in most cases did not include the substance of calls or messages, according to the report.
Prosecutors obtained court orders that in some cases prevented the reporters or staffers from learning that their information had been subpoenaed for years.
Inspector General Michael Horowitz determined that the Justice Department did not follow some of its policies aimed at protecting journalists from being swept up in criminal investigations.
The Justice Department did not convene a committee specifically to review demands for information on reporters and in one case did not obtain a required certification from a U.S. intelligence official.
The Justice Department changed its policy in 2021 to broadly ban prosecutors from subpoenaing reporters’ phone and email records after an outcry over its actions during the Trump-era leak investigations.
The Justice Department in September updated its policy on seeking records from members of Congress or their staffs after reviewing a draft of the report.
The revised policy requires investigators to seek approval from both the U.S. attorney and the Criminal Division’s Public Integrity Section, which handles investigations into political figures.
