Attorney General Merrick Garland is meeting with leaders from CNN, The New York Times, and The Washington Post, and he’s going to have some explaining to do. All three media organizations have recently learned that, under Donald Trump, the Justice Department seized email records of some of their reporters, and stories about other questionable records seizures—including of Democratic members of Congress and even the underage child of a member of Congress—were in the headlines over the weekend.
President Joe Biden has said he won’t allow secret seizures of reporters’ records, but one big question is what’s stopping the next Republican administration from doing so. “What we're asking the attorney general tomorrow is to try to bind future administrations,” CNN Washington Bureau Chief Sam Feist said. "Don't just send a memo. Change policy.”
But seizures of reporters’ records aren’t the only questionable thing the Trump Justice Department was up to, and there are also big questions about what’s been going on there. The DOJ inspector general has opened an investigation into the the use of subpoenas “and other legal authorities” to obtain phone records of members of Congress and their families.
Trump White House counsel Don McGahn was also swept up in the records seizures, The New York Times reported, but Marcy Wheeler argues that that report is largely a distraction from the truly problematic subpoenas—and buries the key information that a House Intelligence Committee staffer appears to have been the actual target of the investigation that pulled in Reps. Adam Schiff and Eric Swalwell.
And, Wheeler argues, the issue here goes beyond the fact that Schiff and Swalwell’s records were seized to begin with. First, once prosecutors realized that they had records for members of Congress, the records should have been sealed. Second, William Barr’s denials of involvement don’t hold up, because he’s denied things he can deny without addressing what he did do. The records were seized before Barr became attorney general, but he returned to them for a later investigation of … something.
”Barr never denied having focused on Members of Congress when he resuscitated his investigation in 2020 (nor has he said for sure that it remained a ‘leak’ investigation rather than a ‘why does this person hate Trump’ investigation, like so many others of his investigations,” Wheeler writes. “Barr denied telling Trump about it. But he didn’t deny that Members of Congress were investigated in 2020.”
She adds that this incident exposes problems with Schiff’s own approach to intelligence investigations: “That’s why Adam Schiff’s reassurances that Section 702 of FISA doesn’t ‘target’ Americans have always been meaningless. Because once FBI ingests the records, they can go back to those records years later, in an entirely different investigation. And no one has denied such a thing happened here.”
There’s a lot that needs investigating here—and denials or no-comments from Barr, fellow former attorney general Jeff Sessions, and especially former deputy attorney general Rod Rosenstein cannot be allowed to stand unchallenged. But just as it’s not enough for the Biden administration to say that it will not secretly seize reporters’ records, the responses to this need to go beyond saying it won’t happen during this administration. The protections people get, whether reporters or members of Congress or regular people, can’t depend on the goodwill of a presidential administration. The rules and policies themselves need to be stronger.