Elections

Adam Schiff Better Have a Warrant

It’s time to stop mocking the House Intelligence Committee chairman as some harmless tin pot. He’s dangerous—and Republicans had better wake up to his authoritarian tendencies while there is still time.

As chairman of the House Intelligence Committee, U.S. Representative Adam Schiff (D-Calif.) is supposed to be the lawmaker in charge of protecting Americans from the government snooping on our phone records. He’s not supposed to be using his position to snoop around in the phone records of Americans. We have no oversight committee to protect Americans from Schiff’s spying.

But, in his recent report on the inquiry into President Trump’s interactions with the Ukrainian government, Schiff disclosed that he has indeed been spying on Americans. 

He wrote:

…phone records show contacts between [Trump attorney Rudy] Giuliani, [Giuliani associate Lev] Parnas, Representative Devin Nunes, and [journalist John] Solomon. Specifically, Mr. Giuliani and Mr. Parnas were in contact with one another, as well as with Mr. Solomon.  Phone records also show contacts on April 10 between Mr. Giuliani and Rep. Nunes, consisting of three short calls in rapid succession, followed by a text message, and ending with a nearly three-minute call. Later that same day, Mr. Parnas and Mr. Solomon had a four-minute, 39-second call. Victoria Toensing, a lawyer who, along with her partner Joseph diGenova, once briefly represented President Trump in connection with Special Counsel Robert Mueller’s investigation, also was in phone contact with Mr. Giuliani and Mr. Parnas at the beginning of April.

In just one paragraph, Schiff subverts four important constitutional principles. How did he get phone records? It isn’t obvious from the report. He simply used the passive phrase, “phone records obtained by the Committee.” Schiff apparently thinks that the fruits of this spying constitute some kind of smoking gun surrounding Nunes, Giuliani, and certain figures in Ukraine. In one sense, I agree: Schiff fired at least four rounds into the Constitution. 

Leslie McAdoo Gordon on Friday published a very thoughtful piece at The Federalist arguing that Schiff legally can (but politically shouldn’t) snatch phone records and publish them in his committee’s impeachment report. Gordon writes: 

In reality, the government can obtain these records without taking any such extraordinary measures—and no judge even need be involved for Congress to get them. It can simply send a subpoena to the carrier.

This seemingly astonishing explanation exists because under current law, these records are not protected by any warrant requirement. First, based on Supreme Court precedent, obtaining these records is not a “search” under the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures by the government.

In Smith v. Maryland . . .  the court said Americans did not have a reasonable expectation of privacy in the information showing who they spoke to on the telephone because the phone company possessed that information. With no reasonable expectation of privacy in that information, the court concluded police didn’t need a warrant to obtain it.

I would agree with her if we were in the microcosm of an individual criminal case. But we’re not. Schiff is the House Intelligence Committee chairman. House Speaker Nancy Pelosi (D-Calif.) controls the House of Representatives. They aren’t line prosecutors with an infrastructure of checks and balances above them.

Schiff is not bound by prosecutorial rules of ethics. An intrusion into civil liberties that otherwise might be tolerable in an individual criminal case has far-reaching and devastating effects on prevailing constitutional principles.

At a minimum, Schiff violated the spirit of the protections guaranteed by the Constitution, if not the letter. 

Let’s take a closer look at those smoking holes Schiff left in the Constitution.

Schiff Impaired Nunes’ Constitutional Right to Gather Facts

Members of Congress have a duty to gather facts regarding a relevant legislative purpose. When Schiff was the intelligence committee’s ranking minority member, he sought naked pictures of Donald Trump from someone he thought was a Russian source. We can laugh at him or even criticize the propriety of the conversation with what turned out to be a pair of Ukrainian radio hosts, but it was probably a privileged inquiry into a matter relevant to his legislative duties.

Now that the shoe is on the other foot and the Democrats are in charge, Schiff is seeking to interfere with Rep. Nunes’ right, as an individual member of Congress, to do the same thing. 

Congressmen may seek voluntary cooperation from members of the public and it is particularly important when the minority lacks subpoena power to compel cooperation—as noted in this 1995 treatise on congressional investigations.

While a powerless minority “no House or committee rules authorize ranking minority members or individual members on their own to institute official committee investigations, hold hearings or to issue subpoenas.” But “Individual members may seek the voluntary cooperation of agency officials or private persons.” So long as Nunes seeks no subpoena to compel the production of material, he’s free to ask anyone for any information so long as it relates to a “legislative purpose.”

By publishing Nunes’ phone records, Schiff has now made it less likely that sources will cooperate with Nunes to turn over information relevant to legislative purposes. Nunes used his position to uncover invaluable information about public corruption. Journalist Lee Smith recently penned an entire book cataloging how Nunes led the team that exposed Clinton’s funding of the dossier used to frame Trump (just one example of the many revelations uncovered thanks to Nunes). 

Certainly, Schiff has not been shy about gathering evidence. So how is it fair that he would obstruct his minority counterpart?

Now that the world knows that Schiff has no problem spying on his ranking member, potential witnesses have reason to fear Schiff will dox them for talking to Nunes. This, of course, was exactly the point of revealing the information. It’s a gross infringement upon the rights of the minority to gather relevant information.

This is a big deal. By closing off fact-gathering, Schiff is attempting to blind the minority and force it to accept the distorted facts Schiff presents. Bad facts make bad laws and lead to bad legislative acts-like this flimsy impeachment. 

Spying on the President’s Attorneys Impairs
His Right to Effective Counsel

Under the Sixth Amendment, a person accused of a crime has the right to the assistance of counsel. The amendment also has been long recognized as a guarantee that the president would have the right to counsel during any attempt to remove him.

Donald Trump has been under constant legal assault since the day he stepped into office. Thus, it’s perfectly appropriate that the president’s personal attorney might seek information or witnesses to defend his client.

The president believes he was framed for colluding with Russia and that the Ukrainians participated. Setting aside the merits of that belief, his personal attorney should have the freedom to investigate that theory as relevant to the credibility of his accusers who just dream up new scenarios for impeachment over and over. 

By revealing the identities of people who spoke with Rudy Giuliani, Schiff is similarly chilling potential witness cooperation with Giuliani and, furthermore, disclosing to the world insight into his legal strategy by exposing his selection of potential witnesses. Leslie McAdoo Gordon notes that courts have not yet recognized an attorney-client privilege in call logs. But, again, we’re on a macro stage in which Schiff broadcast Giuliani’s call activity to the world.

A recent court decision out of Idaho denied an attempt to obtain interview notes of an in-house counsel, “the court found that the interview notes deserved opinion work product protection, because ‘[b]y choosing what details to record and what details to omit, [BYU’s lawyer] implanted her mental impressions in her notes, thereby making them opinion work product.’” Similarly, merely knowing the identities of who Giuliani calls offers a peek at Giuliani’s legal strategy.

Snatching Records Violates the Spirit of the Fourth Amendment

It appears that Schiff may have obtained the phone records through a subpoena. Gordon notes that congressional subpoenas potentially receive more latitude than one originating from a law enforcement agency in the executive branch.

But Congress is not a law enforcement agency. So why not give the target of the subpoenas some opportunity to object before snatching their records?

In a 2018 Supreme Court decision, Carpenter v. U.S., the justices ruled that a subpoena for cell phone records cannot be used to circumvent the constitutional guarantees against unreasonable search and seizure. The court held that an individual maintains a legitimate expectation of privacy, for Fourth Amendment purposes, in the records of his physical movements as captured through cell-site location information, and a search warrant supported by probable cause was necessary before acquiring cell site location information from a wireless carrier. 

“Given the unique nature of cell phone location information,” Chief Justice John Roberts wrote for the majority (in which all of the liberal justices joined and the conservatives dissented), “the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection.”

Call logs are less intrusive than cell phone location records. But in this context, it’s totally unfair to snatch the records without giving the callers the opportunity to fight the subpoenas in court. 

Schiff’s Spying Undercuts the Freedom of the Press

John Solomon is the undisputed king of investigative journalism. He has exploded hoax after hoax with unshakable investigative journalism. His freedom to use confidential sourcing is essential to our freedom from a tyrannical government. By letting the world know that Schiff is monitoring Solomon’s phone calls, there is the potential to discourage sources from cooperating with him.

Under some applications of federal law, Schiff might have been required to give Solomon notice and the opportunity to challenge the search and release of records of his phone calls. Solomon has been a thorn in Schiff’s side throughout the Russia collusion hoax and now during the Ukraine farce. It’s highly disturbing that Schiff would use his position as the chairman of the House Intelligence Committee to interfere with Solomon’s guarantee of confidentiality to sources. Solomon can’t expose the truth if Schiff intimidates sources who want to remain anonymous.

Schiff is out of control. He should be reining in the gross abuses of American civil liberties that are being perpetrated by the intelligence community, not joining in the effort. Obviously, there’s no hope that he will protect our constitutional rights if he cannot resist the temptation to use his own power to spy on Americans.

It’s time to stop mocking Adam Schiff as some harmless tin pot. He’s dangerous and Republicans had better wake up to his authoritarian tendencies while there is still time.