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.