Durbin, Judiciary Committee Democrats Demand Answers From DOJ About Subpoenas for Communications Data of House Democrats

WASHINGTON – Today, Senate Judiciary Committee Chair Dick Durbin (D-IL) led all Senate Judiciary Committee Democrats on a letter to Attorney General (AG) Merrick Garland requesting that the Department of Justice (DOJ) produce materials relating to the Trump-era DOJ’s apparent decision to subpoena metadata of House Permanent Select Committee on Intelligence (HPSCI) Members, their staff, and family members, including a minor. The letter also urges AG Garland to provide the Committee with an immediate briefing on the matter. 

“This grave assault on a co-equal branch of government threatens the very foundation of our constitutional order—the separation of powers,” the Senators wrote. “The Senate Judiciary Committee will vigorously investigate this apparent effort to weaponize DOJ against Trump’s perceived political enemies.”

The Senators continued, “Several officials who reportedly oversaw these egregious overreaches remain at DOJ, including the handpicked prosecutor Attorney General Barr assigned to the case in February 2020. As a first step, we seek your immediate assurance that DOJ will preserve all relevant materials in its possession, custody, or control, including the materials in direct possession, custody, or control of current DOJ employees who were involved in these matters.”

The following Senators joined Durbin in sending today’s letter: Patrick Leahy (D-VT), Dianne Feinstein (D-CA), Sheldon Whitehouse (D-RI), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Cory Booker (D-NJ), Alex Padilla (D-CA), and Jon Ossoff (D-GA).

Full text of today’s letter is available here and below: 

June 14, 2021

Dear Attorney General Garland:

On June 10, The New York Times reported that the Trump-era Department of Justice (DOJ) subpoenaed metadata of House Permanent Select Committee on Intelligence (HPSCI) Members, their staff, and family members, including a minor.^[1] This grave assault on a co-equal branch of government threatens the very foundation of our constitutional order—the separation of powers.

DOJ reportedly targeted the Members as part of a leak investigation beginning in 2017, at the same time HPSCI was conducting a high-profile investigation into the 2016 Trump campaign’s ties to Russia. Although prosecutors reportedly discussed ending the investigation after the metadata showed no proof of leaks, then-Attorney General William Barr apparently renewed it, including by assigning a handpicked prosecutor to oversee the investigation in February 2020.^[2] This timing coincided with repeated statements by then-President Trump targeting HPSCI Chairman Adam Schiff, whom Trump baselessly accused in February 2020 of leaking information about Russian election interference—warning, “if they don’t stop it, I can’t imagine that people are not going to go after them and find out what’s happening.”^[3] 

Although compelling the production of metadata of Members, staff, and their families would raise grave separation of powers concerns in any leak case, these actions by former President Trump and Attorney General Barr raise additional concerns that DOJ’s investigative decisions in this case were motivated by improper political considerations. The Senate Judiciary Committee will vigorously investigate this apparent effort to weaponize DOJ against Trump’s perceived political enemies.

Several officials who reportedly oversaw these egregious overreaches remain at DOJ, including the handpicked prosecutor Attorney General Barr assigned to the case in February 2020. As a first step, we seek your immediate assurance that DOJ will preserve all relevant materials in its possession, custody, or control, including the materials in direct possession, custody, or control of current DOJ employees who were involved in these matters. We also ask that you provide the Committee with an immediate briefing on the matter.

In addition, please respond to the following questions as soon as possible, and no later than June 28, 2021:

1. What was the factual and legal predicate for DOJ to include HPSCI Members, their staff, and family members in this investigation and in these subpoenas for metadata? Please provide separate explanations for each individual.

1. Please describe the process DOJ followed when obtaining grand jury subpoenas for the metadata of HPSCI Members, their staff, and family members, including which DOJ officials approved the decision to obtain such subpoenas.

1. Did DOJ include any Members of HPSCI other than Chairman Schiff and Congressman Eric Swalwell, or any other Members of Congress, their staff, or family members in this investigation? If so, please explain.

1. Did the Office of Legal Counsel provide advice on taking the extraordinary step of subpoenaing metadata from Members of Congress, their staff, and family members in a leak investigation? If so, please provide any such written advice and indicate when the advice was provided.

1. Please produce the following materials as soon as possible, but no later than June 28, 2021:

1. A copy of each subpoena;

1. All documents and communications, including emails, text messages, and calendar entries, referring or related to the Department’s initial decision under Attorney General Sessions to include Members of Congress, their staff, and family members as a part of the investigation into alleged leaks;

1. All documents and communications, including emails, text messages, and calendar entries, referring or related to the Department’s decision to obtain grand jury subpoenas for the metadata of Members of Congress, their staff, and family members in the leak investigation; and

1. All documents and communications, including emails, text messages, and calendar entries, referring or related to Attorney General Barr’s appointment of Osmar Benvenuto to oversee the continuation of the investigation.

Thank you for your prompt attention to this request.

Sincerely,

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