This week, Democrats made a new move toward opening the books in a key area where the Justice Department has been unduly secretive: the scandal involving the department’s subpoenaing of the phone and communication records of prominent critics of Trump.
This is creating a complex situation. It has fallen to Democrats in Congress to pry open the books on the previous GOP administration’s corruption, against the resistance of President Biden’s administration. There’s no guarantee congressional Democrats will succeed, which might end up making the new administration complicit, wittingly or not, in keeping some of the Trump era’s darkest secrets under wraps.
The House Judiciary Committee has fired off a letter to Attorney General Merrick Garland, demanding a full range of documents that could shed light on the department’s subpoenaing of communication records of Trump critics. There are many threads here, and some could lead right to Trump.
As you’ll recall, this scandal involves revelations that the department subpoenaed the records of Reps. Adam B. Schiff and Eric Swalwell — both California Democrats on the Intelligence Committee — while investigating leaks of information related to the Russia scandal.
At the time, Schiff was the Intelligence Committee’s ranking Democrat — he’s now chairman — and both were ubiquitous critics of Trump. This means the subpoenaing of their records could constitute an appalling abuse of power.
Yet Schiff’s requests for basic information about this from the Justice Department have been rebuffed. As I reported last week, the department has refused to detail the legal predicate for this move, how it was initiated and whether other members of Congress were also targeted. An Intelligence Committee official confirms to me that this is still the case.
That’s where the Judiciary Committee’s new demand for documents comes in. Its letter calls on the Justice Department to detail the investigation it initiated into leaks relating to congressional probes of Russian electoral interference.
It also demands documents detailing the legal predicate for the investigation and any subpoenas issued pursuant to it, which would theoretically sweep in any subpoenaing of communication records of members of Congress.
Importantly, however, the letter also demands any and all documents and communications relating to those subpoenas that transpired between the department and Trump, the White House counsel or any other White House officials.
It’s obvious where that could lead. If there were any communications between Trump or White House officials and the department about those subpoenas directed at prominent Democratic critics of Trump, this should net them.
Rep. Jamie B. Raskin (D-Md.), a member of the Judiciary Committee, notes that as part of the department’s effort to ferret out leaks, all we know about right now is a series of “discrete episodes” in which the department sought the information of various Democrats, as well as several news organizations, including The Post.
“We want to know whether these were a couple of minor, exceptional transgressions,” Raskin told me, “or part of a broader criminal conspiracy to use the power of the government to conduct witch hunts against people who were in the disfavor of the president.”
Raskin added that such efforts could conceivably have been part of an effort to obstruct congressional probes of the Russia scandal, though he stressed that we simply don’t know where it will all lead, if anywhere.
Meanwhile, the department is also refusing to release the memo that former attorney general William P. Barr claims to have used to justify not charging Trump with criminal obstruction of justice. Senate Democrats have also demanded this document, which could reveal more perversion of the rule of law to protect Trump.
The big picture here is this. It may be that the Justice Department is operating out of a good faith desire to protect institutional prerogatives and to avoid any appearance of revealing information that is politically damaging to Trump and his GOP protectors.
But even if so, it’s hard to see how the department can hold out against fuller transparency for much longer.
“Attorney General Garland has an interest in restoring the rule of law — of that I have no doubt,” Raskin told me. “But we believe that there will be no return to the rule of law if we allow these events to be swept under the rug.”
A full fumigation of Trump’s corruption, as Ron Brownstein details in a useful piece, probably requires a good deal more than we can even guess at. But what’s sobering is that the current Justice Department is, for now at least, functioning as an obstacle to it. And that isn’t tenable.
“The truth is a difficult pathway,” Raskin told me. “But it is the only route to the restoration of justice in America.”
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