A district court ruled the still-secret subpoenas issued for a host of call records made public by House Intelligence Committee Chairman Adam Schiff during last year’s impeachment investigation of President Trump can remain concealed from the public.
Judicial Watch, a conservative watchdog group, filed a lawsuit in December against Schiff and his committee seeking access to “the controversial subpoenas issued for phone records,” including those of Trump lawyer Rudy Giuliani. Judicial Watch pointed out that Schiff’s impeachment report included “the publication of the private phone records of Giuliani, Congressman Devin Nunes, journalist John Solomon, Trump attorney Jay Sekulow, attorney Victoria Toensing, and other American citizens.”
But last week, Chief Judge Beryl Howell of U.S. District Court of the District of Columbia ruled that Judicial Watch “has no right to demand disclosure of the requested subpoenas and responses thereto issued by HPSIC in connection with the impeachment inquiry of the President, and the Speech or Debate Clause of the Constitution provides immunity from suit to defendants.”
“Absolutely no allegation is made — and no evidence suggests — that HPSCI or its chairman acted ultra vires or in a manner contrary to the U.S. Constitution or a statute in issuing the subpoenas at issue, or receiving the responses thereto, in connection with the impeachment inquiry,” the judge ruled. “Here, the requested subpoenas were issued as part of HPSCI’s investigative effort and such issuance, though undeniably a form of Committee action, was so preliminary to any final recommendation that this action lacks the legal significance to constitute a ‘public record.’”
In response, Judicial Watch President Tom Fitton said the court ruled “that Schiff, or any member of Congress can’t be held accountable for this unprecedented and potentially criminal abuse of power. Every American should be concerned about a ruling that suggests Congress has unlimited power to take and publish their private phone records!” The conservative group is considering an appeal.
Schiff’s legal team, led by Douglas Letter, the Democratic-led House’s general counsel, told the court in March that “these requests and subpoenas were integral to the Committee’s inquiry and consistent with its mandate to investigate and issue a report” about whether Trump should be impeached.
The president was impeached by the Democratic-led House in December on charges of abuse of power and obstruction of Congress, but acquitted after a trial in the GOP-led Senate in early February.
Conservatives criticized Schiff for the tactics he employed. House Intelligence Committee ranking member Devin Nunes called Schiff’s actions a “gross abuse of power.” The Wall Street Journal’s Kimberly Strassel condemned “Adam Schiff’s surveillance state.”
In their filings, Schiff’s lawyers argued Judicial Watch “has not demonstrated that the public interest in disclosure outweighs the House Defendants’ interest in nondisclosure.”
Judicial Watch’s lawsuit argued, “The records are of critical public importance as the subpoenas were issued without any lawful basis and violated the rights of numerous private citizens.” The watchdog further claimed that “disclosure of the requested records would serve the public interest by providing information about the unlawful issuance of the subpoenas.”
Schiff’s lawyers claimed “the doctrine of sovereign immunity” deprives the court of jurisdiction over House Democrats, argued the records sought by Judicial Watch “are absolutely protected by the Speech or Debate Clause” of the Constitution, asserted the subpoena documents are not “public records” and aren’t subject to public access, and said Judicial Watch “fails to state a claim because Congress has created a comprehensive scheme for the review of government records — the Freedom of Information Act.”
Judicial Watch countered earlier this year, saying, “Instead of the selective, self-serving information released publicly by Defendants, the public has a significant interest in fully understanding the unprecedented actions taken by Defendants in subpoenaing telecommunications companies, without any court supervision, and releasing records of the President’s personal attorneys, a journalist, and even a fellow member of Congress.”
Schiff’s team argued that “as part of its impeachment investigation,” the House Intelligence Committee “issued subpoenas to telecommunications providers for certain records” and claimed, “the information obtained in response to the subpoenas furthered the Committee’s investigation by establishing connections — specifically, telephone contacts — between relevant individuals at key points in time.” The Democratic lawyers pointed to one specific example, claiming that “in the days immediately preceding the ousting of then-Ambassador to Ukraine Marie Yovanovitch, the records showed repeated telephone contacts between the White House and Rudy Giuliani, between Mr. Giuliani and Lev Parnas, and between Mr. Giuliani and Ambassador John Bolton, suggesting a coordinated effort to remove Ambassador Yovanovitch from her post.”
A member of the Federal Communications Commission has also raised concerns about Schiff’s actions during impeachment.
Brendan Carr, who was picked by Trump to serve as an FCC commissioner and was confirmed by the Senate in 2017 and again in 2019, wrote to the California Democrat in March to say he was troubled by Schiff’s actions.
Schiff’s impeachment report referenced at least 3,719 pages of such records, and Carr pointed to Section 222 of the Communications Act, which “prohibits any telecommunications carrier from releasing customer call records except as authorized by the customer or as required by law.” The FCC commissioner said, “Federal law has long protected the privacy and confidentiality of Americans’ call records.”
“As a country, are we comfortable with one political party in Congress having the unilateral & unchecked power to secretly obtain & publicize the confidential call records of any private citizen, journalist, or government official?” Carr asked. “Chairman Schiff has been doing exactly that.”
When Schiff was first criticized for collecting and publishing private call records, he dismissed the concerns.
“The blowback is only coming from the far right,” the California Democrat said last year. “Every investigator seeks phone records … Here, we had testimony that the president charged Rudy Giuliani with carrying out this plot. Naturally, we wanted phone records to point out they had those conversations.”
