'Stunning abuse': Columnist cites Schiff's seizure of phone records

FPI / December 8, 2019

In obtaining and divulging the phone logs of his political rivals and investigative reporter, Rep. Adam Schiff engaged in a “stunning abuse of congressional power,” Wall Street Journal columnist Kimberley A. Strassel wrote on Dec. 5.

“Fanatics can justify any action,” Strassel wrote, adding that Schiff this past week “demonstrated where that mindset leads. In his rush to paint Donald Trump as a lawbreaker, Schiff has himself trampled law and responsibility.”

Schiff, chair of the House Intelligence Committee, divulged the phone logs that he had subpoenaed of Trump attorney Rudy Giuliani, Republican Rep. Devin Nunes and others.

In his Ukraine report, Schiff also revealed details about the communications of Trump attorney Jay Sekulow and reporter John Solomon.

“The media is treating this as a victory, when it is a disgraceful breach of ethical and legal propriety,” Strassel wrote.

“If nothing else, 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. 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.”

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,” Strassel noted.

Former Attorney General Michael Mukasey told Strassel: “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.”

Strassel wrote: “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. Schiff, working in secret, unilaterally decided he was entitled to see the phone records of private citizens.”

Mukasey noted that the legal problem is “compounded,” in that going after Giuliani “raises questions of work-product and attorney-client privilege.”

Giuliani remains the president’s personal lawyer, Strassel noted, writing that “law enforcement must present a judge with powerful evidence to get permission to vitiate attorney-client privilege. Schiff ignored all that, and made himself privy to data that could expose the legal strategies of the man he is investigating.”

The Intelligence Committee did give Giuliani advanced notice, sending a subpoena on Sept. 30, and giving him until Oct. 15 to comply.

“Yet before Giuliani even had an opportunity to respond, Schiff separately moved to seize his records from a phone carrier, sending his subpoena to AT&T on Sept. 30 as well,” Strassel noted.

“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 Schiff all the cards, since companies fear political retribution far more than violating their customers’ privacy.”

In his obsessive quest to bring down the duly-elected president, did Schiff make himself legally vulnerable.?

Strassel noted: “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.’ 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.”

Constitutional lawyer David Rivkin said “the subpoenas aren’t related to legitimate congressional oversight” because there’s “no conceivable legislative purpose to obtaining these call logs and publicly disclosing this information, 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.”

Rivkin added that any of Schiff’s targets in his obtaining and divulging the phone logs could sue him under state law for invasion of privacy or intentional infliction of emotional distress, and potentially even compel Schiff to turn over documents in discovery.

Nunes has already indicated he’s weighing his legal options.

“Since House Democrats obviously won’t hold 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,” Strassel concluded.

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