The impeachment inquiry into President Donald Trump this week gave members of Congress a glimpse at a new and distressing weapon in partisan warfare — the exposure of lawmakers’ call records as part of congressional oversight.
The House Intelligence Committee report in its investigation into Trump’s dealings with Ukraine included the call records of the president’s personal attorney Rudy Giuliani, who is reportedly under criminal investigation, and his indicted associate Lev Parnas.
Among the explosive revelations Tuesday were the dates and lengths of calls to and from Rep. Devin Nunes of California, the panel’s top Republican. The committee did not directly subpoena Nunes’ records, but the calls appeared in the Giuliani and Parnas records.
“If you’re going to talk to a criminal, we can’t protect you,” Rep. Eric Swalwell, D-Calif., a member of the Intelligence Committee, said Thursday. “There’s no ‘member of Congress can talk to a criminal’ protection. Like, sorry.”
Swalwell also noted that Nunes “knew all along” that he was in direct contact with Giuliani and Parnas, while he repeatedly accused Intelligence Chairman Adam B. Schiff, D-Calif., of being a fact witness and having a connection to a whistleblower who first reported the Ukraine dealings.
But there’s also no clear connection between the Nunes calls and the main thrust of the investigation into allegations Trump withheld military aid to Ukraine, or obvious substantive reason why records of his calls needed to be made part of the investigative report.
The committee’s inclusion of the Nunes records raised the ire of some House Republicans and Nunes, who released a statement calling it “a gross abuse of power.”
Indiana Republican Rep. Jim Banks called for an escalation Wednesday. He asked Senate Judiciary Chairman Lindsey Graham to subpoena Schiff’s phone records because Schiff “should be held to the same standard to which he holds others.”
“It is time to see his phone records,” Banks wrote in a letter to Graham.
Here’s something wild: There’s no legal barrier to prevent committee chairmen from using their subpoena power to get the records of their colleagues, congressional investigations experts say.
“Congress has used this terrifying weapon against corporations and individuals before, it’s just in this instance they’re turning it on themselves,” Robert Kelner, a partner at Covington & Burling law firm who regularly defends clients in congressional investigations.
Generally, courts have said congressional subpoenas must be pertinent to a legislative matter or inquiry. But courts have not reconciled new laws governing the storage of electronic communications and congressional subpoenas, Kelner said.
Telecommunications companies who receive congressional subpoenas must decide whether to comply or challenge them in court. This would have been a standard subpoena and companies get hundreds of these a year from national security agencies and grand juries, said Stephen Ryan, a partner at McDermott Will & Emery law firm who previously taught congressional investigations at Georgetown University Law Center.
There’s no legal duty for a company to notify customers that their phone records have been subpoenaed, and no legal duty to challenge the subpoena unless the company thinks it is overbroad or legally suspect, Ryan said.
This time, AT&T complied.
“Like all companies, we are required by law to provide information to government and law enforcement agencies,” AT&T spokesman Jim Greer said. “In all cases, we ensure that requests for assistance are valid and that we act in compliance with the law.”
The question Thursday became whether Graham, a vocal backer of congressional comity but one of Trump’s most ardent Senate allies, would follow Banks’ suggestion to subpoena Schiff’s call records.
In front of a bank of media cameras, Graham shot down the idea. But he said what Schiff was doing “is setting a very bad precedent.”
“I’m not going to do that, I wouldn’t want my phone records subpoenaed,” Graham said. “When one politician starts with subpoenaing phone records of another politician, as part of an oversight process, which is sometimes very partisan, it gets to be very problematic for us up here to do our job.”
Nobody is above the law and outside entities such as law enforcement can look at lawmaker call records for the right reasons, Graham said, but “when we start looking into each other’s phone records and who we talk to, that gets to be chaos, and I will have no part of that.”
Even still, the episode raised awareness at the Capitol and elsewhere that information about their calls can be out of their control, even if they are following the law.
“I tell clients all the time, you should think about who you are communicating with, because while you may not receive the subpoena, they may,” Kelner said. “And your communications can come to light through the investigation that someone else gets involved in.”
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