During the first Trump administration, the Justice Department launched four sprawling leak investigations that ultimately targeted two Democrats in Congress, dozens of congressional staffers from both parties, and eight reporters at three national outlets, as described in a report from the top DOJ watchdog on Tuesday.
The Justice Department’s inspector general found prosecutors never notified courts that they were seeking email and phone records for sitting members of Congress and their aides. The DOJ also did not follow its own rules around spying on journalists, according to the report.
The report is a grim reminder that agency rules are ineffective to check abuses.
With Trump weeks away from returning to the White House and packing the DOJ and FBI with loyalists, the report is a grim reminder that agency rules are ineffective to check abuses, especially when the rules themselves are unclear or leave considerable discretion to individual prosecutors about whether and how they apply.
“The Inspector General’s revelations are beyond disturbing,” said Sen. Ron Wyden, D-Ore., in an emailed statement. “It is particularly concerning that the Department of Justice hoodwinked a judge into signing off on secret surveillance on both Democrats and Republicans in Congress.”
“As these abuses demonstrate, there are few guardrails preventing a lone prosecutor or the Attorney General, the Department of Justice or even state or local law enforcement from spying on Congress and threatening our constitutional system of checks and balances,” Wyden said.
Press freedom advocates were disturbed but not surprised at the inspector general’s findings. Seth Stern, advocacy director at Freedom of the Press Foundation, said Congress needs to step in and protect journalists and their sources through legislation like the PRESS Act, which has been sitting in the Senate after passing the House of Representatives unanimously in early 2024.
“We don’t need to waste ink on years-late 100-page reports to confirm that the DOJ disregards these policies at its whim. We already know that,” Stern told The Intercept. “We need to pass the PRESS Act.”
Investigating Members of Congress
The report offers a detailed but anonymized account of four leak investigations, which were all launched in 2017 under Trump’s first attorney general, Jeff Sessions, and continued under his successor, Bill Barr. They aimed to identify the leakers behind stories published by the Washington Post, CNN, and the New York Times.
Barr declined to be interviewed by the inspector general’s office. But a lower DOJ official told investigators that both Sessions and Barr had “made it very clear leak investigations were a priority of the Department,” per the report.
The investigations became public during the Biden administration, which set off a flurry of protest from Congress and the media. The inspector general launched a review in summer 2021.
“The Department did not charge anyone in these investigations with unauthorized disclosure of classified information, and all four of the investigations are now closed,” according to the report.
The inspector general did not name the two members of Congress whose records were seized, but the report indicates both were Democrats. According to the report, a Democratic committee staffer identified the two members as the potential leakers, “but without providing any evidentiary support for the claim.” This tipster was later found to be of “uncertain credibility” and “unknown reliability,” but prosecutors still relied on the witness in at least two search warrant applications.
Rep. Adam Schiff of California, who was chair of the House Intelligence Committee, previously acknowledged that the DOJ subpoenaed Apple for his data in 2018, as did Rep. Eric Swalwell, another Californian on the same committee. When the subpoenas first came to light in 2021, Democrats suggested the Justice Department was targeting prominent Trump critics. But the inspector general found no evidence to support that claim.
“We did not find evidence of retaliatory motivation by the career prosecutors who issued the compulsory process for records of Members of Congress and congressional staffers, or that they sought the compulsory process based on party affiliation,” the report reads.
The 43 congressional staffers who came under investigation worked for both parties: 21 in Democratic positions and 20 in Republican ones, plus 2 in nonpartisan roles. Their posts included the intelligence and judiciary committees in both chambers, as well as House and Senate leadership roles.
In addition to demanding records from Apple, Google, and other service providers — for which investigators often don’t need a warrant or other court order, under the federal Stored Communications Act — prosecutors also asked judges to impose gag orders that prohibited the providers from notifying the targets.
Many of these gags were repeatedly renewed with only boilerplate justifications, the inspector general found, and courts extended some as long as four years. The DOJ successfully asked judges to extend gag orders after the leak investigations became public in 2021. One senior committee staffer was excluded as a potential leaker, but still the court allowed prosecutors to extend the gag.
“Spying on phone records should require a court order,” said Wyden, who has called for reforming U.S. surveillance laws. “Gag orders should only be issued when absolutely necessary and should not last forever. Surveillance targets should eventually be told they were surveilled.”
In dozens of filings, prosecutors also did not disclose to judges that the surveillance targets were members of Congress or their staff.
At the time, the DOJ had no clear rules around using administrative subpoenas, search warrants, or court orders or administrative subpoenas — lumped together as “compulsory process” in the report — to investigate members of Congress and their staff as potential leakers, including what types of records were appropriate to seek, with what level of oversight from DOJ leadership, and with what level of disclosure to courts.
In response to the inspector general’s review, the Justice Department implemented some rules, including a new requirement in the department manual to notify judges when gag orders concern members of Congress and their aides.
The new rules are still insufficiently clear, however, the watchdog warned.
Snooping on Reporters
In contrast to the dearth of rules about surveilling Congress, the DOJ has long had guidelines that, on paper, limit federal surveillance of journalists. Those rules, however, are not enforceable in court. The Obama administration overhauled the guidelines following outcry over the DOJ seeking phone records of The Associated Press journalists, emails of a Fox News reporter, and testimony from former New York Times reporter Jim Risen about confidential sources (Risen later joined The Intercept).
The updated rules typically required the DOJ to notify media in advance of any surveillance demands, so that journalists and press outlets could challenge them in court or negotiate the scope. The guidelines also required a committee of high-ranking DOJ officials to consider plans to subpoena reporters and for the attorney general to personally sign off.
Despite these changes in response to recent scandals, the Trump DOJ did not fully follow the department’s guidelines, the inspector general found.
“We were troubled that these failures occurred only a few years after this overhaul,” the office said in a statement accompanying the report.
In 2020, the DOJ sought records from service providers regarding a total of eight reporters at the Washington Post, CNN, and the New York Times, according to the report. Barr personally signed off on all of the record demands, as required, authorizing the Washington Post demand on his last day in office in December 2020.
But the demands for journalists’ materials never went before the DOJ committee as required, the inspector general found, nor did Barr expressly authorize gag orders that DOJ sought for the subpoenas to service providers.
Rather than notifying reporters in advance that their materials were being seized, prosecutors asked Barr’s permission to delay notification to all three outlets, which he granted under a provision in the DOJ guidelines regarding the “substantial threat” to the integrity of the investigations.
“The Department’s deviation from its own requirements indicates a troubling disparity between, on the one hand, the regard expressed in Department policy for the role of the news media in American democracy and, on the other hand, the Department’s commitment to complying with the limits and requirements that it intended to safeguard that very role,” the report concludes.
The Biden administration updated the DOJ guidelines again in 2022 in response to revelations about the Trump DOJ’s leak investigations. But the next Trump administration can scrap those updates just as easily or simply disregard the guidelines, as happened during Trump 1.0.
Press freedom advocates have thus urged Congress to pass laws that shield reporters and their sources, rather than rely on the Justice Department to police its own honor code. “There’s nothing more commonsense, or more bipartisan, than shielding journalists from unnecessary government surveillance,” Wyden, one of the lead sponsors of the PRESS Act, told The Intercept previously. “Conservative, liberal, and nonpartisan media all depend on speaking to sources without fear of being spied on by government officials who want to suppress unflattering information.”
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