Top Democrats in the House are investigating whether Trump justice department officials ran an unlawful shadow operation to target political enemies of the former president to hunt down leaks of classified information, according to a source familiar with the matter.
The House judiciary committee chairman, Jerry Nadler, is centering his investigation on the apparent violation of internal policies by the justice department, when it issued subpoenas against Democrats Adam Schiff and Eric Swalwell in 2018.
The use of subpoenas to secretly seize data from the two Democrats on the House intelligence committee – and fierce critics of Donald Trump – would ordinarily require authorization from the highest levels of the justice department and notably, the attorney general.
But with the former Trump attorneys general Bill Barr and Jeff Sessions denying any knowledge of the subpoenas, Democrats are focused on whether rogue officials abused the vast power of the federal government to target Trump’s perceived political opponents, the source said.
That kind of shadow operation – reminiscent of the shadow foreign policy in Ukraine that led to Trump’s first impeachment – would be significant because it could render the subpoenas unlawful, the source said.
And if the subpoenas were issued without proper authorization from the attorney general level, it could also leave the officials involved in the effort open to prosecution for false operating with the imprimatur of law enforcement.
The sharpening contours of the House judiciary committee’s investigation into the Trump justice department reflects Democrats’ determination to uncover potential politicization at the department.
Current and former justice department officials have described the subpoenas as part of a fact-gathering effort that ensnared Schiff and Swalwell because they had been in contact with congressional aides suspected of leaking classified information.
As the justice department investigated leaks, they obtained records of House intelligence committee staffers, as well as the records of their contacts. Schiff and Swalwell were not the target of the investigation, the Wall Street Journal reported.
But Democrats are also concerned about the denials from Barr and Sessions and are set to look at whether they made publicly misleading representations to obfuscate the extent of their involvement.
The two former attorneys general appeared to issue very carefully worded denials, the source said, which raised the prospect that they may have been at least aware of the leak inquiries into Schiff and Swalwell.
Barr said in an interview with Politico that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case”, while Sessions also told associates he was never briefed on the subpoenas.
In examining the denials, Democrats could demand testimony from Barr and Sessions, as well as other Trump justice department officials. Nadler told the Guardian he would also consider deposing the former deputy attorney general Rod Rosenstein.
But the committee is not expected to issue subpoenas for their testimony for some time, in large part because Democrats and counsel on the committee are not yet certain what information they need to compel.
The committee took its first step in trying to establish what testimony it needed for its investigation last week, when Nadler sent a lengthy document request to the attorney general, Merrick Garland, and demanded a briefing before 25 June.
Democrats on the House judiciary committee are not likely to receive a briefing until next month, the source said. But the House inquiry is sure to be the most potent investigation into the data seizure after Republicans vowed to stymie a parallel inquiry in the Senate.
Although justice department investigations into leaks of classified information are routine, the use of subpoenas to seize data belonging to the accounts of sitting members of Congress with gag orders to keep their existence secret remain near-unprecedented.
Justice department investigators gained access to, among others, the records of Schiff, then the top Democrat on the House intelligence committee and now its chairman, Swalwell and the family members of lawmakers and aides.