Eric Swalwell on CNN

NCS’s Don Lemon, Rep. Eric Swalwell

Explosive revelations that Trump’s Department of Justice seized data tied to high House Intelligence Committee Democrats, their staffers and their members of the family spurred comparisons throughout the cable networks of turbocharged Richard Nixon-like techniques.

Ex-FBI Assistant Director Frank Figliuzzi advised MSNBC that it appeared Trump had a “blacklist of enemies” that “seemingly included only Democrats,” a apply that he couldn’t recall in many years serving from the trenches to the leadership of the bureau. Figliuzzi’s remarks about an enemies record carried specific weight from the previous head of the FBI’s counterintelligence division underneath Robert Mueller in 2011.

Asking three high nationwide safety consultants concerning the comparability in telephone interviews, Law&Crime obtained a spread of responses. One discovered Donald Trump’s modus operandi too scattershot for Nixon’s crafty to really feel apt. Another discovered the analogy downplayed the hazard of the present second, and third discovered the political motivations of each to be clear.

All three believed historic parallels solely go up to now in describing the New York Times report that the Justice Department subpoenaed Apple for knowledge from accounts of at the least two Democrats on the House Intelligence Committee—chair Adam Schiff and Eric Swalwell, each California representatives vilified by Trump—in 2017 and 2018. Prosecutors seized data tied to at the least a dozen folks within the committee, together with one of their minor kids, and the Justice Department gagged Apple from telling the targets of the subpoena about it, in accordance to the report.

NCS subsequently reported that then-Attorney General Jeff Sessions had not been concerned in these subpoenas, and the Times beforehand reported ex-Attorney General Bill Barr revived the moribund probes, earlier than they lastly died.

Three main nationwide safety consultants Law&Crime contacted in telephone interviews for this text discovered the leak investigation of Congress members extraordinarily uncommon, if not downright alarming or apparently political.

Sparking requires an inspector common investigation and laws to defend in opposition to abusive searches, the report falls amid a sequence of others about Trump’s Justice Department looking for details about the New York Times, The Washington Post, NCS and even a parody Twitter account of the previous president’s ally, Rep. Devin Nunes (R-Calif).

Echoes, and Limits, of the Nixon Analogy

Speaking on MSNBC’s present The eleventh Hour, Figliuzzi’s remark was in response to a immediate by host Brian Williams, who predicted Nixon comparisons would quickly turn into a “cable news drinking game.” During the Watergate scandal, Nixon’s so-called “hatchet man” Charles Colson and former particular assistant George T. Bell compiled a listing of perceived political foes despatched to then-White House counsel John Dean in 1971.

In a telephone interview, nationwide safety lawyer Bradley Moss questioned the analogy, believing that any modern-day equal can be extra haphazard by way of a Trumpian prism.

“As much as it would be newsworthy and fascinating to imagine there was some formal version of an enemies list, it’s unlikely that existed in any true form beyond Trump’s rantings on Twitter,” Moss advised Law&Crime in a telephone interview.

“Whatever [Trump] may have said in private discussions in the Oval Office, this does represent, obviously, the Justice Department pushing a lot of their discretionary ranges of authority that have always existed in the gray areas, pushing it to the limit to see how far they could go,” Moss continued, including that it confirmed federal prosecutors going the place they “never would have dreamed” of treading beforehand.

“The only time I ever can remember them ever going for stuff with respect to members of Congress was tied up in financial corruption, and public corruption probes, which is understandable, because again, just like anyone else, members of Congress aren’t above the law,” Moss famous. “Simply being a member of Congress does not place you beyond the reach of law enforcement.”

The investigation reported by the Times, nevertheless, was a leak investigation that sputtered alongside till it fizzled.

As Moss famous, even pursuing a leak investigation in opposition to a member of Congress had beforehand been thought-about a 3rd rail.

“There would be serious separation of powers and constitutional complications to any effort to try to prosecute a member of Congress for disclosing classified information to a member of the media, for example,” Moss stated. “The government’s never tried it. The worst kept secret is everybody in this town leaks, and we all know that Congress is not above leaking. But DOJ, as a matter of policy has always avoided going after members, because there would be a serious constitutional clash. It’d be a question of whether or not Congress has the inherent authority to declassify or determine to declassify or disclose information on its own, separate from the executive branch, and the DOJ doesn’t want that fight.”

“Or at least, it didn’t want that fight,” Moss added.

There is a cause for that, Georgetown University adjunct professor Kel McClanahan, the chief director of National Security Counselors, famous.

“Even if they found something that was a smoking gun, that would be virtually unprosecutable,” McClanahan stated, citing each the speech or debate clause of the Constitution and up to date precedent fortifying Westfall Act immunity for Congress members talking to the press.

“So what you have here is either a purely political thing or something that no lawyer did any due diligence on to figure out is it really worth it,” he continued. “Because the best case scenario for DOJ, if this were not political, would be evidence that Adam Schiff leaked this classified information to a reporter that they can do absolutely nothing—except you hit as a political weapon against him.”

For Fordham Law School’s Center on National Security director Karen Greenberg, the Nixon analogy undersells the hazard.

“It’s nice to recall the echoes of the past and the Nixon times, but I think we’re in a whole new ballgame,” Greenberg advised Law&Crime in a telephone interview. “I think it’s quite frightening also, to notice. We don’t know the extent of this surveillance. We only know what we’ve been told so far. We don’t know how long it was, how many people were considered enemies. So I think in some ways, this is a very new and different chapter.”

Watchdogs, Legislation, and Accountability

The Times report rapidly made waves throughout Capitol Hill, with a number of lawmakers calling for an inspector common investigation—together with the 2 reported targets of the probe. Swalwell backed Schiff’s name for the inspector common to examine “this case and other acts of the weaponization of law enforcement carried out by the former president.”

“Like many of the world’s most despicable dictators, former President Trump showed an utter disdain for our democracy and the rule of law,” Swalwell stated in an announcement. “In May, I was notified by Apple that my records were among those sought by—and turned over to—the Trump Administration as part of a politically motivated investigation into his perceived enemies. This kind of conduct is unacceptable, but unfortunately on brand for a president who has repeatedly shown he would cast aside our Constitution for his own personal gain.”

Sen. Ron Wyden (D-Ore.), whose bona fides as a privateness hawk earned him the repute as a “one-man Consumer Internet Protection Bureau,” already has began speaking laws.

“Revelations about the Trump Justice Department’s targeting of journalists and political rivals proves again how surveillance powers can be abused and the need to put strict limits on gag orders that prevent the targets of this spying from learning about it for years,” Wyden wrote in an announcement despatched to Law&Crime. “I plan to introduce legislation to reform the abuse of gag orders and provide more transparency about government surveillance.”

For Greenberg, the creator of “Rogue Justice: The Making of the Security State,” any investigations that observe should be backed by stronger motion for accountability so as to stem future abuses.

“President Obama famously said, ‘We’re going to look forward, not backwards,” Greenberg famous, referring to Obama’s comments about George W. Bush-era torture in 2009. “And you know what, that’s what happens when you look forward, not backwards. You end up with it.”

“What happens if you break the law? What happens if you overstep your authority? What happens if you do things that are contrary not just to the law, but to the norms that have been established for decades? What happens if you do that?” Greenberg requested. “If nothing happens, how do you think this isn’t going to get repeated. And we have seen no desire on the part of Merrick Garland to actually approach accountability when it comes to the excesses of the Trump administration.”

As to what accountability can be wanted, Greenberg replied that’s what an investigation ought to uncover, however she added that the inspector common reviews have been, in apply, the top aim for too lengthy.

“We’ve had so many good, thorough, detailed inspector general reports about what went on in a variety of different parts of the executive over the past decade,” she famous. “And what’s the result then? So I think that’s just not enough.”

McClanahan really useful resolving a longstanding turf battle throughout the Justice Department’s accountability equipment tooth: permit its Office of the Inspector General (OIG) to take over circumstances which were more and more shunted off to the Office of Professional Responsibility (OPR).

“If you have an allegation against an attorney of misconduct, and it’s based on they lied to a judge, or they withheld evidence, or they did an investigation wrong or something like that, the OIG is not allowed to investigate it,” McClanahan defined. “They have to hand it off to OPR, and OPR is a joke. OPR never finds, practically never finds, that anybody ever did anything.”

The thought of fixing this dynamic obtained some traction final 12 months in Congress, earlier than it died in a Senate underneath the management of then-Majority Leader Mitch McConnell (R-Ky.).

There are a number of indications that now’s the time for congressional motion, with Senate Majority Leader Chuck Schumer (D-N.Y.) and Senate Judiciary Chair Dick Durbin (D-Ill.) reportedly demanding that Barr and Sessions testify earlier than Congress on the matter, underneath oath. There is one other signal the timing is especially ripe to resolve the intra-DOJ turf warfare. The Justice Department introduced it’s looking for an internal probe of the subpoenas, the AP reported.

(Screengrab from NCS)

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