The Justice Department during Donald Trump’s first presidential term used concerning and surreptitious tactics to obtain communications from members of Congress, their staffers and news reporters as prosecutors investigated public leaks of sensitive government information, according to a report released Tuesday by the agency’s inspector general.
Inspector General Michael Horowitz did not accuse anyone of violating the law, and much of what he addressed had been previously reported. However, the report reveals that the number of congressional aides from whom prosecutors sought communications is significantly larger than previously known.
Horowitz said the Justice Department needs to implement more robust policies to protect against future abuses of the rights of lawmakers, their staff and journalists. Tactics the agency used to seize communications, he noted, could inadvertently reveal protected whistleblower conduct or other sensitive information.
Report arrived before the second Trump administration is set to begin
The inspector general initiated his investigation in 2021, a few months after President Joe Biden took office. His report arrives ahead of the second Trump administration, as Trump and some of his nominees for key positions, including the FBI, have pledged to use the Justice Department to seek retribution against political enemies.
The report focuses on the Justice Department subpoenaing communications between 2017 and 2020 while investigating leaks of classified information to reporters. These leaks detailed contacts between Trump aides and Russia as the agency probed possible Russian interference in the 2016 presidential election.
The two lawmakers whose records were seized were both Democrats, according to the report. Of the 43 congressional staffers, 21 worked for Democrats, 20 worked for Republicans and two held nonpartisan positions on congressional committees.
No 'retaliatory motivation'
The report stated that it found no “retaliatory motivation by the career prosecutors” who issued the subpoenas to obtain the communication records. It concluded that all records were seized because the individuals had access to the sensitive material that had been leaked.
According to the report, the Justice Department - largely under then-Attorney General William P. Barr - used court orders to obtain communications from service providers. The agency sought non-content communications, meaning it did not request the actual content of messages but rather information showing who communicated with whom and at what times. This type of request generally has a lower legal threshold.
Seized communication records
Authorities seized communication records from reporters at The Washington Post, The New York Times and CNN as part of the probes.
Prosecutors also obtained nondisclosure orders to prevent service providers from notifying the individuals that their records had been obtained.
On the congressional side, many individuals were targeted solely because they had received briefings on the classified information that was leaked, rather than because they were suspected of leaking it.
Kash Patel, Trump’s pick to lead the FBI if the current director is fired or resigns, was among the congressional aides whose records were seized, the report said. Patel, who was a staffer on the House Intelligence Committee at the time, sued top Justice Department officials last year after being informed by Google that his records had been subpoenaed.
That lawsuit, filed in federal court in Washington, was dismissed.
Barr did not agree to be interviewed for the report, according to the inspector general. However, he has publicly stated that he wasn’t briefed on the decision to use court orders to obtain the records from the two lawmakers.
The inspector general noted that no policy at the time required Barr to approve the seizure of phones belonging to members of Congress or their aides, making it unlikely he was involved in the decision-making process.
“Issuing compulsory process for records of a Member of Congress or congressional staffer based solely on their access to information as part of their oversight responsibilities and the timing of that access risks creating, at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch,” the report said.
The inspector general highlighted that the Justice Department has since strengthened its policies to prevent similar widespread leak investigations with limited oversight.
Under Attorney General Merrick Garland, the department announced in June 2021 that it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources, except in rare circumstances.
In 2023, the department implemented new rules requiring prosecutors to seek approval from its Public Integrity Section and the relevant U.S. attorney before seeking subpoenas or other court orders for communications involving legislators or their aides. The same sign-off is required for nondisclosure orders.
In response to the inspector general’s report, the Justice Department said it is working to further strengthen its policies around investigating journalists, members of Congress and their staffers.
However, for such regulations to carry notable penalties, Congress would likely need to approve them.