President Donald Trump and Attorney General William P. Barr in 2019. (Jabin Botsford/The Washington Post)
The Justice Department during Donald Trump’s first presidential term used concerning and surreptitious tactics to obtain communications from members of Congress, their staffers and news reporters as prosecutors investigated public leaks of sensitive government information, according to a report released Tuesday by the Justice Department’s inspector general.
Inspector General Michael Horowitz did not accuse anyone of violating the law, and much of what he addressed had been previously reported. But the report reveals that the number of congressional aides from whom prosecutors sought communications is much larger than previously known.
Horowitz said the Justice Department needs to implement more robust policies to protect future abuses of the rights of lawmakers, their staff and journalists. Employing such tactics, he said, could also inadvertently reveal protected whistleblower conduct or other sensitive information.
The inspector general initiated his investigation in 2021, and the report arrived before the second Trump administration is set to take office. Trump and some of his picks for key offices, including the FBI, have vowed to use the Justice Department to seek retribution on political enemies.
The report focuses on the Justice Department subpoenaing people’s communications between 2017 and 2020 as investigators sought to determine who in the government leaked to reporters classified information that detailed contact between Trump’s aides and Russia.
The two Congress members whose records were seized were both Democrats, according to the report. Of the 43 congressional staffers, 21 worked for Democrats and 20 worked for Republican. Two of the staffers worked in nonpartisan positions for congressional committees.
The report said it found no “retaliatory motivation by the career prosecutors” who issued the subpoenas to obtain the communication records and said all the records were seized because the people had access to the sensitive material.
According to the report, the Justice Department - largely under then-Attorney General William P. Barr - used court orders to obtain the communications from the service providers where the communication took place. The agency sought what is known as non-content communications, which means it did not seek the actual content of messages but sought information showing who communicated with whom and at what times. There is typically a lower legal threshold to obtaining this information.
Authorities seized communication records from reporters from the New York Times, the Washington Post and CNN a part of the probes.
Prosecutors also obtained nondisclosure orders to prohibit the service providers from letting the subjects know that the government was obtaining their records.
On the congressional side, the Justice Department obtained communication records from two lawmakers and 43 aides. Many of the people were targeted only because they had received briefings on the classified information that was leaked - not because they were suspected of leaking it.
Kash Patel - Trump’s pick to lead the FBI after the current director is fired or resigns - is among the congressional aides whose records were seized. Patel, who was a staffer on the House Intelligence Committee at the time, sued top Justice Department officials last year, saying Google informed him that his records were subpoenaed.
That suit, which was filed in federal court in Washington, D.C., was dismissed.
Barr, according to the inspector general, did not agree to be interviewed for the report. But he has publicly said that he wasn’t briefed on the decision to use court orders to obtain the records from two lawmakers. The inspector general said there was no policy in place at the time that would have required Barr to sign off on the actions to seize the phones of the members of Congress or aides, so it was unlikely that he was a part of the decision-making.
“Issuing compulsory process for records of a Member of Congress or congressional staffer based solely on their access to information as part of their oversight responsibilities and the timing of that access risks creating, at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch.”
The inspector general noted in the report that the Justice Department has already strengthened policies to prevent such widespread leak investigations with little oversight.
Under Attorney General Merrick Garland, the department said it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources except in rare occasions.
In 2023, the department said prosecutors must seek approval from its Public Integrity Section and the relevant U.S. attorney before they can seek a subpoena or other court orders for legislators’ or their aides’ communications. That same sign-off is required before obtaining nondisclosure orders.
In response to the IG report, the Justice Department said it is seeking to further strengthen some of its policies around investigating reporters and Congress members and their staffers.
But to carry notable penalties, such regulations would probably need to be approved by Congress.
