Can you imagine the danger to our republic if the Executive Branch could secretly, for months on end, and without any clear and compelling justification, surveil the very people in Congress conducting oversight of those agencies?
That chilling constitutional nightmare transpired. And we’re only getting the details about the separation-of-powers-eviscerating, civil liberties-undermining, and transparency-imperiling activity seven years after it started.
The revelations come in a recently released Justice Department Inspector General report. Like much of this corrupt activity, the story begins with Russiagate. In the spring and summer of 2017, the first year of the Trump presidency, CNN, The New York Times, and The Washington Post published articles containing classified information concerning Trump and Russia.
… When news reports emerged during the Biden years of what had transpired, DOJ issued a new congressional investigations policy ostensibly requiring greater scrutiny of and higher-level approvals for subpoenas and NDOs, while still not requiring approval from or notification of the attorney general or deputy attorney general — not that any such processes necessarily would have prevented such malfeasance. Only after reviewing the IG report in September of this year did DOJ even create rules mandating that prosecutors disclose to the court when an NDO involves a congressional office or staffer.
Another notable takeaway from the IG report is that the bar to subpoena communications records from members of the media is actually higher than that from members of the legislative branch. Unlike the DOJ’s News Media Policy, the Congressional Investigations Policy contains no “exhaustion requirement.” Prosecutors need not exhaust “all other reasonable means of identifying the sources of the unauthorized disclosures,” prior to seeking a subpoena. Only then, in the case of news media, must the feds request “Attorney General authorization.”
Remarkably, even after modifying its Congressional Investigations Policy, according to the IG, it is not clear that illegal leaks are subject to the policy. The policy is located in a chapter of DOJ’s Justice Manual called “Protection of Government Integrity,” the first provision of which states that the chapter deals with crimes “including bribery of public officials and accepting a gratuity, election crimes, and other related offenses.” Unauthorized disclosures do not make the list.
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