It is almost shocking that the press is not calling this out, even though its “one of their own” who is the perpetrator.
Fanatics can justify any action, and House Intelligence Chairman Adam Schiff this week demonstrated where that mindset leads. In his rush to paint Donald Trump as a lawbreaker, Mr. Schiff has himself trampled law and responsibility.
That’s the bottom line in Mr. Schiff’s stunning decision to subpoena the phone records of Rudy Giuliani and others. Mr. Schiff divulged the phone logs this week in his Ukraine report, thereby revealing details about the communications of Trump attorneys Jay Sekulow and Mr. Giuliani, ranking Intelligence Committee member Devin Nunes, reporter John Solomon and others. The media is treating this as a victory, when it is a disgraceful breach of ethical and legal propriety.
If nothing else, Mr. Schiff claims the ignominious distinction of being the first congressman to use his official powers to spy on a fellow member and publish the details. His report also means open season on members of the press. Mr. Giuliani over months has likely spoken to dozens of political figures and reporters—and the numbers, dates and length of those calls are now in Democrats’ hot little hands. Who gets the Schiff treatment next? If you think politics is ugly now, imagine a world in which congressional partisans routinely track and expose the call lists of their political rivals and disfavored media.
If we’ve never had a scandal like this before, it’s in part because it is legally dubious. Federal law bars phone carriers from handing over records without an individual’s agreement. The statute makes some exceptions, including for federal and state law-enforcement agencies.
But not for lawmakers. “There does not appear to be any basis to believe that a congressional committee is authorized to subpoena telephone records directly from a provider—as opposed to an individual,” former Attorney General Michael Mukasey tells me.
Maybe that’s because no one would have conceived of Congress needing to peruse private phone records. Its mission is writing laws. Or it might have been in recognition that Congress has no outside check on its subpoena powers. Law-enforcement subpoenas generally entail court supervision, helping to ensure they have a valid purpose. Mr. Schiff, working in secret, unilaterally decided he was entitled to see the phone records of private citizens.
Mr. Mukasey notes that the legal problem is “compounded,” in that going after Mr. Giuliani “raises questions of work-product and attorney- client privilege.” Whatever his role in the Ukraine affair, Mr. Giuliani remains the president’s personal lawyer. Law enforcement must present a judge with powerful evidence to get permission to vitiate attorney-client privilege. Mr. Schiff ignored all that, and made himself privy to data that could expose the legal strategies of the man he is investigating.
Obtaining phone logs of political rivals is a stunning abuse of congressional power.
Mr. Giuliani did have notice that Democrats wanted some of his phone records. The Intelligence Committee sent a subpoena on Sept. 30, and gave him until Oct. 15 to comply. Yet before Mr. Giuliani even had an opportunity to respond, Mr. Schiff separately moved to seize his records from a phone carrier, sending his subpoena to AT& T on Sept. 30 as well.
Mr. Schiff purposely kept that action secret. This guaranteed that the only entity involved with a decision over whether to release the records was AT& T. And that gave Mr. Schiff all the cards, since companies fear political retribution far more than violating their customers’ privacy.
The question is whether Mr. Schiff, in his zeal to bring down Mr. Trump, has made himself legally vulnerable. In Kilbourn v. Thompson (1881), the U.S. Supreme Court held that “a congressional investigation into individual affairs is invalid if unrelated to any legislative purpose.” Mr. Schiff might argue he has wider powers in an impeachment inquiry. But the House didn’t approve the inquiry until Oct. 31, a month after he issued his main AT& T subpoena.
“The subpoenas aren’t related to legitimate congressional oversight,” says constitutional lawyer David Rivkin. Because there’s “no conceivable legislative purpose to obtaining these call logs and publicly disclosing this information, Mr. Schiff would not be able to benefit from the Speech and Debate Clause immunity that otherwise protects members of Congress from civil and criminal liability.” Mr. Rivkin adds that any of the targets could sue Mr. Schiff under state law for invasion of privacy or intentional infliction of emotional distress, and potentially even compel Mr. Schiff to turn over documents in discovery.
Mr. Nunes has already said he’s weighing his legal options. Since House Democrats obviously won’t hold Mr. Schiff accountable for his abuses, let’s hope at least one of the targets demands a court review his tactics. No one should want to live in a world where Adam Schiff has unfettered power to spy on Americans.