(WASHINGTON) — A top government watchdog raised concerns Tuesday over the handling of leak investigations during the first Trump administration that targeted members of Congress and the media despite finding no evidence that the inquiries were politically motivated, according to a newly released report.
Justice Department Inspector General Michael Horowitz initiated the investigation after public reports that prosecutors, during President-elect Donald Trump’s first term, had obtained warrants to access communications records for members of Congress, congressional staffers and reporters at CNN, the New York Times and the Washington Post to identify sources of apparent leaks of classified information.
The investigations were not publicly disclosed until after Trump left office, in part because prosecutors had secured court orders that prevented lawmakers, their staff and media members from learning about the searches.
The report, which comes as Trump has threatened to take action against his political rivals and the media through the DOJ and FBI, reveals the scope of the leak investigations into members of Congress and their staff was much broader than previous reports suggested.
While Rep. Eric Swalwell and now-Sen. Adam Schiff, both California Democrats, previously revealed their records had been seized as part of the investigation, Horowitz’s report revealed prosecutors also searched the records of 43 others who were congressional staffers at the time the leaked information was published.
But Horowitz’s report noted that the partisan affiliation of the staffers was not imbalanced — 21 staffers whose records were searched were Democrats, 20 were Republicans, and two worked in nonpartisan positions. The inspector general investigation determined the basis for the staffers’ records being searched was entirely due to their known ability to access the materials that were found to be leaked to the press, while the investigations into Schiff, then a congressman, and Swalwell were initially bolstered by information given to the department by an unidentified committee staffer who suspected them of leaking — but provided no evidence to support the claims.
While his name is not mentioned directly in the report, Kash Patel, Trump’s pick for FBI director, was among the 43 people who were congressional staffers at the time of the Trump-era leak probe whose records were searched, a source familiar with the investigation confirmed.
Patel has also said publicly on multiple occasions that he was subject to investigation by Trump’s DOJ and was also informed by Google that the DOJ had sought information on his personal accounts.
Horowitz’s report expressed concerns regarding the congressional leak investigations largely related to a lack of existing policies at the DOJ to provide senior-level oversight over such investigations that implicate the separation of powers. Records reviewed by Horowitz said the inquiries into members of Congress were conducted by career prosecutors almost entirely without senior-level supervision or notification and that there was no evidence they were pressured to carry out the inquiries despite Trump and other Republicans repeatedly singling out Schiff and Swalwell as possible leakers.
According to Horowitz, that the department was able to carry out its sweeping investigation of the members of Congress and their staff solely on the basis of them having had access to the leaked information “risks chilling Congress’s ability to conduct oversight of the executive branch because it exposes congressional officials to having their records reviewed by the Department solely for conducting Congress’s constitutionally authorized oversight duties.”
As for the Trump-era leak investigations of reporters from CNN, the New York Times and the Washington Post, Horowitz found that officials in the department violated several policies that existed at the time then-Attorney General William Barr authorized the investigations. Prosecutors failed to convene a News Media Review Committee that would normally be consulted in the process of investigations of leaks to members of the media and, in one of the investigations, failed to obtain approval from the director of national intelligence, according to the report.
Upon disclosure of the news media leak investigations in 2021, Attorney General Merrick Garland convened several meetings with newsroom leaders across Washington, D.C., and ultimately implemented new DOJ policy that bars prosecutors from securing search warrants for reporters’ records to obtain information about their sources.
The future of that policy, however, remains very much in question — given public comments by Trump and his top allies suggesting they fully intend to use the powers of the DOJ and the FBI to target political enemies and even possibly members of the media during his second term. While Horowitz’s report offered up several recommendations for internal policy fixes to the issued identified in the report, all of which were accepted by the Biden DOJ, it will be up to leadership in the incoming Trump DOJ to determine whether those recommendations will be implemented.
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