The Federal Bureau of Investigation’s Domestic Investigations and Operations Guide, the bible for agents, has long acknowledged that journalists, the clergy and lawyers deserve particular protections due to the constitutional implications of investigating their work. Penitents who confess to a priest, sources who provide confidential info to a reporter, and clients who search advice from counsel are assumed to be protected by a high bar of privacy, which should be weighed against the state’s interests in investigating matters or subpoenaing records. Judges and members of Congress also fall into a special FBI category due to the Constitution’s separation of powers.
The FBI and Justice Department have therefore created specific rules governing agents’ actions involving special-circumstances professionals, which include high-level approval and review. There are also special rules for subpoenaing journalists.
If the executive branch, and by extension the courts that enforce these privacy protections, observe the need for such sensitivity, it appears reasonable that Congress should have similar guardrails guaranteeing that the powers of the state are equally and fairly applied.
House Intelligence Committee Chairman Adam Schiff apparently doesn’t see things that way. His committee secretly authorized subpoenas to AT&T earlier this yr for the phone information of President Trump’s private lawyer, Rudy Giuliani, and an associate. He then arbitrarily extracted details about certain personal calls and made them public.
Many of the calls Mr. Schiff chose to publicize fell into the special-circumstances categories: a fellow member of Congress ( Rep. Devin Nunes, the Intelligence Committee’s ranking Republican), two lawyers (Mr. Giuliani and fellow Trump lawyer Jay Sekulow ) and a journalist (me).
More alarming, the released call records involve figures who’ve sometimes criticized or clashed with Mr. Schiff. I wrote a story elevating questions on his contacts with Fusion GPS founder Glenn Simpson, a key figure within the Russia probe, that brought the California Democrat unwelcome scrutiny. Mr. Nunes has been one of Mr. Schiff’s primary Republican antagonists, helping to show that the exaggerated claims of Trump-Russia election collusion were unsubstantiated. Messrs. Sekulow and Giuliani represent Mr. Trump, who’s Mr. Schiff’s impeachment target.
Mr. Schiff’s actions in obtaining and publicizing private cellphone data trampled the attorney-client privilege of Mr. Trump and his attorneys. It intruded on my First Amendment rights to interview and contact figures like Mr. Giuliani and the Ukrainian-American businessman Lev Parnas with out concern of getting the dates, times and length of personal conversation disclosed to the public.
Contrary to Mr. Schiff’s defense that he was simply serving the investigative interest of Congress, the release of the cellphone records served much more to punish people whose work Mr. Schiff discovered antagonistic than to satisfy an oversight purpose. And it served Congress poorly as a result of it spread false insinuations. Mr. Schiff’s report suggested, as an example, that Mr. Giuliani called the White House to talk to the Office of Management and Budget, implying he may need been attempting to help Mr. Trump withhold aid to Ukraine as Democrats allege. The White House says that claim is incorrect; the number was a generic cellphone entry point and no one in OMB talked to Mr. Giuliani.
Likewise, Mr. Schiff revealed call information between Mr. Giuliani and me and suggested they involved my Ukraine stories. Many contacts I had with Mr. Giuliani involved interviews on the Mueller report and its aftermath or efforts to invite the president’s lawyer on the Hill’s TV show, which I supervised.
Mr. Schiff’s group has tried to reduce the conduct because he never subpoenaed my phone information directly but extracted them from others’ call records. That defense is laughable. As soon as a journalist and his calls are made public via the powers of the surveillance state, there’s an immediate chilling impact on press freedom.
I know this firsthand. In 2001 and 2002, once I was a reporter for the Associated Press, the Justice Department obtained my home cellphone records and the FBI illegally seized my mail without a warrant in an effort to unmask my sources on federal corruption and stop publication of a story about the government’s counterterrorism failures before 9/11. In the end the FBI returned my reporting data, apologized to me privately, and introduced new guidelines to avoid a repeat for other journalists.
Yet by that time lots of my longtime sources had informed me they’d chosen to not contact me for fear of being detected. Others would only meet in person, concerned that my telephones were wiretapped.
Similarly, in the days since Mr. Schiff’s phone-record release, I’ve had people who openly talked to me on the cellphone this yr all of a sudden ask to communicate only by encrypted apps. They don’t need their names splashed in the next congressional report. They usually fear a bipartisan open season on cellphone records of political opponents in the future.
Rep. Mike Turner (R., Ohio), a member of the Intelligence Committee, tells me he’s drafting legislation to put guardrails on future congressional subpoenas for cellphone records. That’s an excellent start, however more needs to be completed sooner.
Mr. Schiff seems to assume that Congress enjoys unlimited investigative powers under the Constitution’s Speech or Debate clause. He doesn’t. I recommend the chairman examine the record in McSurely v. McClellan, a two-decade legal battle that started in 1967 and pitted a strong committee chairman against a liberal activist couple in Kentucky. It’s widely regarded—along with the McCarthy hearings of the 1950s—as one among most egregious episodes of misconduct in the modern history of congressional oversight.
In one of many final appellate decisions in that topsy-turvy case, the U.S. Circuit Court of Appeals for the District of Columbia ruled that Congressional oversight isn’t boundless and that the Speech or Debate Clause has limits. The final paragraph of that ruling derided a “sorry chapter of investigative excess.”
The judges wrote that their choice “can only stand as a small reaffirmation of the proposition that there are bounds to the interference that citizens should tolerate from the agents of their authorities—even when such agents invoke the mighty protect of the Constitution and claim official purpose to their conduct.” That principle is due for another affirmation.