by Robert Romano
It appears that House Intelligence Committee Chairman Adam Schiff (D-Calif.) managed to get AT&T and Verizon to cooperate with a Congressional subpoena to provide phone records of President Donald Trump’s personal attorneys Rudy Giuliani and Jay Sekulow, U.S. Rep. Devin Nunes (R-Calif.), the ranking member of the committee for Republicans, and journalist John Solomon.
Schiff justified getting the records of Nunes in a press statement on Dec. 3, accusing the ranking member of the committee of “complicity” in the President’s wrongdoing, stating, “It is, I think, deeply concerning, that at a time when the President of the United States was using the power of his office to dig up dirt on a political rival, that there may be evidence that there were members of Congress complicit in that activity.”
This is an unprecedented abuse of power to subpoena the phone records of a fellow committeeman, a journalist and the President’s attorneys, and then for the phone companies to just turn over the information without the customers’ consent when nothing in law allows it. Authoritarian.
18 U.S.C. Section 1039(b)(1) states very clearly that phone carriers can only turn over records with a customer’s permission: “Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally sells or transfers, or attempts to sell or transfer, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both.”
There is an exception to that, under 18 U.S.C. Section 1039(g), but it applies only to the executive branch and the states: “This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or political subdivision of a State, or of an intelligence agency of the United States.”
Nowhere in the statute does it mention Congress as being one of the exempted bodies — and Congress ought to have known — it wrote the law. Congress could have easily inserted itself as an entity authorized under law to receive this information, but it chose not to, and prohibited such activity when it stated in subsection (b)(1) “except as otherwise permitted by applicable law…” precluding Congress since it is not a law enforcement agency, a State, a political subdivision of a State or an intelligence agency.
The subpoena was directed at the phone carriers, who have obligations under federal law not to turn over the records without a customers’ consent or a court order from an entity permitted under law to receive the records.
And there is no question that Nunes, Giuliani and Solomon were not cooperating in the subpoenas, as all three have issued statements condemning the practice.
So if Congress has the power to subpoena the phone records, it must rely solely on its inherent legislative powers under Article I, as there is no clear guidance in the law, and in fact appears to be a strict prohibition on the furnishing of phone records to anyone that is not a law enforcement or intelligence agency that is lawfully authorized by a court. So perhaps an argument could be made that Schiff and the phone carriers violated the law by unlawfully transferring the phone records.
As far as Congress’ powers go, court precedents on Congressional subpoenas are pretty clear. Subpoenaed documents must be furnished if the purpose of the investigation is legislative. Is impeachment legislative? Yes, it appears in Article I of the Constitution, outlining all legislative powers.
But what are the limits of the subpoena power? That’s a great question.
In 1955, the Supreme Court ruled in Quinn v. United States, “the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary. Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights…”
Now, if this were the executive branch seeking phone records, the Justice Department would have to go to court, probably the Foreign Intelligence Surveillance Act (FISA) court, to get a warrant to furnish the phone records in question, say, for counterintelligence purposes.
That is owed to the Fourth Amendment’s protections against unreasonable searches and seizures: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
But when Congress subpoenas records, those usually don’t go to court unless somebody challenges the subpoena or contempt finding by the Congressional committee. And even then, courts have ruled in favor of Congress, saying that as long as the purpose is legislative, it’s okay.
Is that the right precedent? Why doesn’t Congress have to abide by the Fourth Amendment? Of course it should have to in principle, being an entity bound by the Bill of Rights. If it were otherwise Congress could implement a police state with endless inquisitions. So where are the warrants?
In this particular case, AT&T and Verizon appear to have simply cooperated with Congress’ spying dictates without question. AT&T issued a statement proclaiming it had no choice, saying it is “required by law to provide information to government and law enforcement agencies… In all cases, we ensure that requests for assistance are valid and that we act in compliance with the law.”
And since the phone carriers are the keepers of the records, so the thinking goes, they can waive the rights to those records. But the law suggests otherwise, and creates a narrow exception for law enforcement and intelligence — of which Congress is neither.
Which, on this overall question, are Pelosi and Schiff now saying that it would be okay for the Senate to begin subpoenaing the phone records of, say, House Intelligence Committee Chairman Adam Schiff and his staff to see if there were any contacts with the anonymous CIA so-called whistleblower prior to the complaint being lodged?
Americans for Limited Government President Rick Manning blasted the practice by Congress, calling the impeachment an “inquisition” in a statement and “an astonishing abuse of power.”
Manning added, “This disclosure transforms the Schiff impeachment sham into an inquisition that would make Torquemada blush. If Nancy Pelosi as the leader of the entire House of Representatives authorized the spying of one member upon another, she should be removed from office immediately. Congress is not the FISA court.”
It is unclear if a federal court would have ever granted the phone records of the President’s attorney, a journalist and another member of Congress to Congress upon a judicial challenge when their activities are otherwise protected by the Bill of Rights. That is why those whose records have been obtained ought to challenge their constitutionality — before Congress determines that it can set up a warrantless surveillance state for everyone else, too.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
Left to Right: Photo “Devin Nunes” by Gage Skidmore. CC BY-SA 2.0. Photo “Rudy Giuliani” by Gage Skidmore. CC BY-SA 2.0. Photo “Jay Sekulow” by Jay Sekulow. Photo “John Solomon” by John Solomon.