Trump first-term inquiry into leakers led to invasive searches, report finds

A Department of Justice (DoJ) investigation aimed at finding leakers during Donald Trump’s first presidency resulted in invasive searches of congressional staffers’ phone and email records, often without specific cause or the prior approval of the attorney general, a report published on Tuesday has found.

In findings that may trigger concerns of how Trump’s incoming administration will behave, the department’s inspector general concluded that DoJ lawyers overreached their authority in their inquiries aimed at discovering who was leaking classified information in 2017, in the early phases of the president-elect’s first stint in the White House.

The phone records of two Congress members and 43 staffers – including 21 Democrats and 20 Republicans, along with two holding non-partisan roles – were sought in an aggressive effort to find the source of leaks following the firing of James Comey, the former FBI director, who was ousted by Trump.

Although Michael Horowitz’s 96-page report did not identify those whose records had been searched, CNN reported that they included Kash Patel, whom Trump has nominated to be the next FBI director. Patel was a staff member of the House of Representatives’ intelligence committee at the time of the DoJ leak inquiry.

Others included the then House member, and recently elected Democratic senator, Adam Schiff – branded as an “enemy within” by Trump in his successful recent presidential election campaign – and Eric Swalwell, another Democratic representative.

DoJ prosecutors also sought the records of journalists from the New York Times, Washington Post and CNN as part of the investigation.

The subpoenaing of reporters’ records during the first Trump administration has been previously reported and was described as “simply, simply wrong” by Joe Biden in 2021, leading to the DoJ announcing it would no longer seek a legal process to find out journalists’ sources.

Since his first presidency, Trump has pledged to jail reporters who do not divulge their sources on stories he considers to have national security implications – a threat now carrying greater weight with his imminent return to the White House.

Horowitz said many of the congressional records had been obtained without just cause and, as such, put Congress’s constitutional oversight function of the executive branch at risk.

“[D]ozens of congressional staffers became part of the subject pool in a federal criminal investigation for doing nothing more than performing constitutionally authorized oversight of the executive branch,” he wrote.

“We believe that using compulsory process to obtain such records when based solely on the close proximity in time between access to the classified information and subsequent publication of the information – which was the case with most of the process issued for non-content communications records of congressional staff in the investigations we examined – risks chilling Congress’s ability to conduct oversight of the executive branch.”

The report said DoJ prosecutors did not take into account important constitutional principles governing the separation of powers between the legislative and executive branches.

The subpoenas requested records of whom staff had spoken to and for how long, rather than the content of their conversations.

However, even such limited requests amounted to an encroachment on Congress’s constitutional powers, the report suggested.

It stated: “Even non-content communications records – such as those predominantly sought here – can reveal the fact of sensitive communications of members of Congress and staffers, including with executive branch whistleblowers and with interest groups engaging in First Amendment activity.”

Criticism of the department for over-zealousness during Trump’s first administration seems ironic given his insistent claims that it was weaponised against him after he left office to press criminal charges that he has dismissed as a political witch-hunt and which he has demanded be purged.

It may also foreshadow developments in his forthcoming presidency after he nominated a staunch loyalist, Pam Bondi, as attorney general, after his original pick, Matt Gaetz, stepped aside amid allegations of sexual misconduct. Trump has repeatedly expressed his desire to bring the DoJ under direct White House control, in contrast with the quasi-independent status it has held since the Watergate era.

He has also spoken of using it to pursue his political opponents and enemies.