First we learned that former President Donald Trump’s Department of Justice secretly obtained records about the communications of members of the press.
Then we learned it secretly sought data about the communications of his political enemies in Congress.
Now we have learned it secretly sought information about the communications of Trump’s own White House counsel, Don McGahn.
The rat-a-tat revelations raise more questions than they answer about why the Justice Department – the federal agency charged with upholding America’s rule of law, regardless of politics – was so into the business of people the then-President viewed as his enemies.
Add to years of the alarming public disclosures of what the department did under Trump the realization that the department under Biden has not exactly been publicly forthcoming with what happened under the previous leadership.
Democrats are gearing up for a full-scale investigation of the whole affair. Appearing on CNN, House Speaker Nancy Pelosi compared the DOJ subpoenas to former President Richard Nixon’s infamous “enemies list.”
“Richard Nixon had an enemies list. This is about undermining the rule of law,” she said on CNN’s “State of the Union.”
Last Friday, before we learned that the Justice Department leak hunt reached inside the White House, I tried to lay out what we did and didn’t know about how the Department of Justice was being used during the Trump era.
A lot happened over the weekend, so I went back to CNN crime and justice reporter Katelyn Polantz as well as to CNN’s Adam Levine, who oversees our coverage of this story, for their latest thoughts on what we all need to understand about what happened here. What’s below is based largely on my conversations with them.
The pattern is the most concerning element
What we see is a pattern of unusual investigative steps in what appears to be leak investigations, almost all involving to some degree stated foes of Trump, who occupied senior government positions that usually would not be pursued this aggressively.
It’s clear the Justice Department was secretly seeking data regarding the accounts of a range of reporters, politicians, people around the politicians and the White House counsel. Presumably, judges were looking at reasons from investigators to keep secret the subpoenas and court orders for data, and grand juries had reasons to investigate crimes that merited subpoenas. We simply don’t know who was the target of these investigations.
There is the possibility that the House Democratic lawmakers who are involved – that’s Reps. Adam Schiff and Eric Swalwell, both members of the House intelligence committee – were not specifically sought out with the February 2018 subpoena. We now know Apple was directed to turn over records on 109 phone numbers and emails. That large a number suggests investigators may have already mined a target’s phone records and were seeking to determine identities of the numbers they found. On the other hand, we know Trump was calling for leak investigations and declaring Schiff a leaker.
So one key question for Justice Department leaders now is this: If Schiff and Swalwell were not the targets of these investigations, why doesn’t the Justice Department just come out and simply say that?
We should be careful not to lump all these things together
We’ve learned in quick succession about DOJ success in collecting data on reporters, and pursuits of information on the political opposition investigating the President’s campaign and of former White House counsel Don McGahn. That we’ve learned about them in quick succession does not necessarily mean they are related.
What we know about the leak
We know that under Trump’s first Attorney General Jeff Sessions, the DOJ had dozens of open leak investigations. (Sessions was, however, recused from investigations involving Trump and Russia.) CNN has also reported that Sessions’ successor, William Barr, the Department was pushing to wrap up the open investigations.
At least some of these investigations are years old
All of these subpoenas came under the Trump administration. We’re learning about them now because gag orders related to them are all lapsing at the same time, or the new administration is dropping the investigative pushes.
But all of the subpoenas to Apple and Microsoft and to media organizations that have been disclosed in recent weeks were for investigations about events in 2017 and 2018, when Trump was publicly grousing about leaks.
So another way to look at all of this is the Department of Justice may have collected data about communications of members of Congress as well as the White House counsel, and then kept it quiet even after Trump left office.
Trump’s public complaints suggest but do not prove he is tied to the investigations
The DOJ is supposed to operate independently of political influence. What makes these revelations so concerning is that he specifically complained about leaks to the press – and DOJ sought press communications. He complained that Democrats in Congress were leaking, and DOJ sought Democrats’ communications. He was at odds with McGahn, who was blocking Trump from firing then-special counsel Robert Mueller, and a month later McGahn’s data was being sought by the Justice Department.
That all sounds very bad, but it’s also completely circumstantial. There is a lot we don’t know about what prompted each of these. The Justice Department’s inspector general will investigate.
No one wants to take responsibility for this
Sessions says he had no knowledge of the subpoenas of House Democrats. Barr told Politico last week that he doesn’t recall it at all, even though he pushed for outstanding leak investigations to be wrapped up. He even brought in in a New Jersey prosecutor to oversee the completion of cases – which could mean closing the cases as much it could have been a push to prosecute them.
Despite this, neither Barr nor former Deputy Attorney General Rod Rosenstein nor anyone else has professed any knowledge of efforts to investigate the lawmakers. If they are to be believed, then even after investigators learned they were in possession of Swalwell and Schiff’s info, they didn’t tell senior DOJ officials or the officials. If no one stepped in to make sure Congress’ speech protections weren’t mishandled, this would seem an extraordinary breach of protocol and a potential separation of powers problem if prosecutors are operating completely without oversight.
House Judiciary Chairman Jerry Nadler on Monday announced his committee would open a formal investigation into the department’s surveillance of members of Congress, journalists and others.
“It remains possible that these cases … are isolated incidents. Even if these reports are completely unrelated, they raise serious constitutional and separation of power concerns,” he said in a statement. “Congress must make it extraordinarily difficult, if not impossible, for the Department to spy on the Congress or the news media. We should make it hard for prosecutors to hide behind secret gag orders for years at a time. We cannot rely on the Department alone to make these changes.”
Also on Monday, CNN reported that John Demers, the Trump-appointed head of the Justice Department’s national security division, is leaving at the end of the month as planned.
Pay attention to the subpoenas of House Democrats
It’s one thing to seek the information of journalists, who are actively reporting on government. It’s another to seek information about a White House lawyer. There could be legitimate reasons, potentially, for both of those types of investigations, and policies in place that allowed the Justice Department to pursue them. We veer most toward autocratic banana republic territory when the federal prosecutors are keeping tabs on the political opposition – especially elected officials in another branch of government – through unusually aggressive leak investigations.
Pay special attention to Biden’s Attorney General Merrick Garland
The current attorney general met Monday with lawyers for news organizations targeted by Trump-era DOJ subpoenas. He also met with House Democrats, including Schiff, who was among the Democrats targeted. How quickly and transparently Garland can account for these investigations and the secret subpoenas will have a lot to do with how big a story this ends up being.
In a statement Monday, Garland said his deputy is already working on “surfacing potentially problematic matters,” and he promised to “strengthen the department’s existing policies and procedures for obtaining records of the legislative branch.”
“We must ensure that full weight is accorded to separation-of-powers concerns moving forward,” Garland said.