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Monday, June 21, 2021

ANALYSIS/OPINION:

Just a few years ago, Rep. Adam Schiff had no qualms using secret subpoenas to obtain the phone records of American citizens without their consent. But now, he is hypocritically complaining that his phone records were supposedly obtained by a grand jury.  

During the 2019 Impeachment investigation of President Donald Trump, Mr. Schiff, as chairman of the House Intelligence Committee, obtained the phone records of many prominent figures in the Trump orbit, including Rudy Giuliani, Rep. Devin Nunes, California Republican, Jay Sekulow and others using secret subpoenas. Mr. Schiff then compounded his constitutional abuse by actually publishing these private phone records. 


The targeted individuals hadn’t known about the subpoena of their phone records because Mr. Schiff kept the subpoenas under wraps and obtained the records directly from the phone companies. This left these citizens with no legal avenue through which to challenge Mr. Schiff’s subpoenas.  

Unlike Mr. Schiff’s spy games, the Justice Department used a court-authorized grand jury process to obtain Mr. Schiff’s records as part of a criminal investigation into leaks of classified information that can harm national security. Mr. Schiff sanctimoniously referred to the investigation against him as a “cudgel against (Trump’s) political opponents and members of the media.” Instead of exposing Mr. Schiff’s hypocrisy, the mainstream media has given his dishonest rantings an airing.  

Judicial Watch called out Mr. Schiff’s overreach in December 2019 when it filed a suit against Mr. Schiff and the House Intelligence Committee under the common law right of public access to government documents to ensure, “members of the public have the right to examine government records when the public interest in disclosure is greater than that in government secrecy.” 

Mr. Schiff’s legal team of taxpayer-funded congressional lawyers responded by arguing that the public didn’t deserve to see the subpoenas. They phrased this claim in different ways, arguing for “sovereign immunity;” and “Speech or Debate Clause” privilege, but their argument was always that Mr. Schiff could use subpoenas however he wanted without public scrutiny or accountability to the courts.  

Judicial Watch was stymied in this case at the district court level and appealed to the United States Court of Appeals for the D.C. Circuit. During the recent appellate hearing, the House’s lawyer admitted that there were no limits to what could be subpoenaed by the House. 

“Court: So is there any limitation to this principle, then? Can a subpoena be issued for any information and that can’t be beyond the scope of the Speech and Debate Clause protection? 

House Attorney: No, Your Honor, I don’t think there is any subpoena that cannot be beyond the scope.” 

That disturbing admission notwithstanding, the court panel protected Mr. Schiff’s spy operation from public scrutiny Yet, some hope for justice remains in a concurring opinion issued by Judge Karen LeCraft Henderson, who wrote: 

“I agree with my colleagues that, under our precedent, the Speech or Debate Clause of the United States Constitution bars Judicial Watch’s lawsuit. But I join in the judgment only; I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing…” 

Judge Henderson’s concurring opinion outlines a path to ensuring Americans have a right to basic information about the unprecedented assertion by Mr. Schiff (and the Pelosi House) that Congress can issue secret subpoenas targeting Americans with no court process. 

In the meantime, Mr. Schiff and his allies in the corrupt media seem to argue that, unlike other Americans, they should receive special immunity from secret grand jury subpoenas that can be issued for any other person. 

The other scandal out of the Justice Department about these subpoenas is why the Biden administration moved to protect Mr. Schiff and the media by shutting down and curtailing investigations into criminal leaks of classified information.  

• Tom Fitton is president of Judicial Watch  


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