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The Justice Department secretly obtained phone records from two members of Congress and 43 staffers – including Kash Patel, President-elect Donald Trump’s pick to lead the FBI – during sweeping leak investigations during Trump’s first term, according to a watchdog report released Tuesday.
The new report from the Justice Department’s inspector general raises concerns about how the department tried to root out reporters’ sources from a sprawling and bipartisan list of federal employees who had access to classified information because of their job.
Patel and the two members of Congress are not named in the report, but two sources familiar with the matter tell CNN that Patel was targeted along with Democratic Reps. Adam Schiff and Eric Swalwell. Patel was a staffer for the GOP-led House Intelligence Committee at the time, and Schiff has since been elected to the Senate and took office Monday.
Prosecutors also sought records including emails from journalists at CNN, The Washington Post and The New York Times, according to the report.
The report found that DOJ investigators issued a broad sweep based on who may have had access to the sensitive information that was leaked.
Seeking records based only on “the close proximity in time between access to classified information and subsequent publication of the information… risks chilling Congress’s ability to conduct oversight of the executive branch,” the inspector general wrote.
That’s because such a move “exposes congressional officials to having their records reviewed by the Department solely for conducting Congress’ constitutional authorized oversight duties and creating, at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch,” the inspector general added.
Patel, meeting with senators on Tuesday regarding his FBI director selection, did not comment on the news of the report.
The inspector general did not recommend charges against anyone in their review and did not find any indication that the career prosecutors assigned to the leak investigation were motivated by politics.
Patel, meeting with senators on Tuesday regarding his upcoming FBI director nomination, didn’t comment on the report.
Among the issues that the inspector general pointed out is that there are no guardrails for prosecutors who want to subpoena communication records from members of Congress or their staff, and that while some protections for journalists do exist, they were not properly followed.
For example, prosecutors did not have to inform Justice Department leadership that the records they sought were those of members of Congress – and Bill Barr, who was the attorney general at the time, has said he was “not aware of any congressman’s records being sought in a leak case.” Barr declined to be interviewed as part of the inspector general review of the matter.
The report also notes the Justice Department obtained non-disclosure orders in 40 of the congressional cases, meaning that members and their staff were not aware their communications records had been seized. In seeking those orders, prosecutors were not required to say with any specificity whose records they were going after.
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While journalists do have more protections outlined in Justice Department rules, the report details breaches of that protocol in the department’s efforts to secretly obtain communications of eight journalists at news organizations.
Within CNN, the Trump administration secretly sought and obtained the 2017 phone and email records of Pentagon correspondent Barbara Starr. The Biden Justice Department later informed Starr that prosecutors had obtained her records covering two months between June 1, 2017, and July 30, 2017. It remains unclear what the Trump administration was looking for in Starr’s records.
The four leak investigations appeared to touch on hotly political topics, especially law enforcement’s response to the 2016 election, according to the news organizations’ own coverage of becoming subject to the investigations when they learned of them years ago.
Yet what each news organization learned made clear the DOJ appeared to be pursuing different leaks and topics among each.
For instance, the investigation that swept up Starr’s records involved national security information at a time Starr was reporting on US military options in North Korea, as well as Syria and Afghanistan.
The New York Times said it believed the investigation that sought four of its reporters’ communications was likely centered around a 2017 article about how then-FBI Director James Comey – a foe of Trump’s – oversaw investigations related to the 2016 presidential campaign.
The Washington Post, reporting on the DOJ pursuit of three of its reporters’ records, linked the news to three stories it published in 2017 about the Obama administration’s response to Russian interference in the 2016 election, and about Trump-world contacts with Sergey Kislyak, Russia’s then-ambassador to the US. The news outlet said at the time that what it learned of DOJ’s investigation “makes clear that investigators believed people working in Congress were the likely sources of the information.”
The inspector general found that prosecutors failed to follow some of the department guidelines that instructed prosecutors to exhaust all other investigative options before subpoenaing records from journalists. Among those failures is that an internal committee that is supposed to review subpoena requests for reporters’ records was never convened, the report says.
In one leak investigation, prosecutors did not obtain the required certification from the Director of National Intelligence, the inspector general said. In another, they obtained the required certification, but it is not clear whether it was ever provided to Barr.
Prosecutors also failed to obtain Barr’s approval, which was a required step in the process to get non-disclosure orders that stopped reporters from learning that their records had been seized.
After the effort to obtain records was publicly revealed, the Justice Department codified a rule that bars department employees from secretly seeking journalists’ records except in limited circumstances. Under previous DOJ regulations, investigators could secretly obtain journalists’ records through a court order without the journalists’ knowledge.
An apparent leak investigation years ago that swept up Patel’s Google account information fueled some of his anger toward the Justice Department and FBI in recent years.
Last fall, Patel sued Trump’s prior top DOJ and FBI appointees, including Director Christopher Wray, for unfairly obtaining his data in 2017.
Subpoena paperwork that Patel made public in the lawsuit indicate Justice Department prosecutors working with a federal grand jury in Washington, DC, sought Patel’s Google and Google Voice records from an almost 20-month period in 2016 and 2017.
In his complaint, he says he learned five years after the subpoena that the Justice Department had sought his communications from Google.
Google told him in December 2022 it had “received and responded to a legal process by the United States Department of Justice compelling the release of information related to your Google account,” according to a notification from Google that Patel made public in the lawsuit. “A court order previously prohibited Google from notifying you of the legal process. We are now permitted to discuss the receipt of the legal process to you.”
The underlying court records aren’t publicly available, and Patel wasn’t provided with additional details about what was driving the investigation – as is typical for these types of investigative pursuits.
In his complaint in court, Patel railed against the then-Trump administration political appointees Jessie Liu, Rod Rosenstein, Robert Hur, Ed O’Callahan and Wray for their alleged actions in the covert investigation, accusing them of retaliating against his work in Congress because of how he was pursuing the history of the FBI’s Russia investigation.
A federal judge in Washington, DC, ultimately dismissed the lawsuit this fall. The judge said the officials Patel sued were immune, and that Patel hadn’t argued successfully that he was harmed by the officials’ work.
CNN’s Danya Gainor contributed to this report.
This story has been updated with additional details.
2024-12-10 16:00:50
