House Intelligence Committee Chairman Adam Schiff’s decision to publish the phone records of the president’s personal attorneys, a journalist, a fellow lawmaker, a National Security Council aide, and others has sent a chill among Republicans concerned about the reach of a powerful chairman determined to root out the communications of people with connections to the Trump-Ukraine affair. Rep. Devin Nunes, ranking Republican on the committee, whose phone records were included among those released, called the move a “gross abuse of power.”
The Intelligence Committee Democrats’ Trump-Ukraine impeachment investigation report, released publicly Tuesday, included records of some phone calls by presidential lawyers Rudy Giuliani and Jay Sekulow, Nunes, journalist John Solomon, Fox News host Sean Hannity, indicted Giuliani associate Lev Parnas, National Security Council aide and former Nunes staffer Kash Patel, lawyer Victoria Toensing, and unidentified people at the White House and Office of Management and Budget.
The published records consisted only of the two parties on each call, plus the date and duration of the call. No content from any call was released.
Schiff subpoenaed AT&T and Verizon for the information. Sources involved in the matter have only minimal information of exactly what Schiff did, but they believe the chairman subpoenaed a total of five phone numbers — it is not clear who each number was associated with — from which the published information was taken.
It is also not clear how much phone record information Schiff received from AT&T and Verizon that was not included in the report.
To the layman, it seems worrisome that the committee would publish phone records of the president’s lawyers — are there attorney-client issues involved? — plus a journalist — are there First Amendment issues involved? — and a member of Congress. But among insiders and experts, the concern is not that Schiff broke the law — it appears he acted legally — but that the committee majority used its authority to walk up to the edge of propriety in a politically-charged investigation.
In a text exchange, I asked one Republican lawmaker with knowledge of the situation whether Schiff’s move raised any attorney-client issues:
Not legally. They used their subpoena authority. The decision to publish certain records is out of bounds as clearly political retribution, but it’s not illegal as far as I can determine.
By email, I asked Berkeley law professor John Yoo, a noted legal scholar who once worked for the George W. Bush administration, whether anyone’s rights might have been affected. He downplayed the possibility of an attorney-client privilege violation but suggested Schiff’s action might have violated other rights. This is his response:
There is certainly a constitutional privacy issue here, but I don’t think an attorney-client privilege issue. The attorney-client privilege covers the substance of the communication, but it doesn’t protect the fact that a communication took place.
For example, when one party to a lawsuit has to hand over documents to the other party, it can redact the content of the document if it is attorney-client privileged or withhold the document itself, but not the fact of the document’s existence (there is usually a log created that sets out the from, to, date information, etc.).
That is a separate question from whether Giuliani and Nunes had any constitutional rights violated by the House when it obtained these records. I am surprised that Giuliani and the White House did not think this would come up and sue their telecom providers to prevent them from obeying any demands from the House for their calling records.
Among those directly involved, the feelings were more intense. In a text exchange Wednesday, I asked Giuliani whether he believed Schiff’s actions touched on attorney-client privilege. His response:
Schiff, Pelosi, Nadler have trashed the U.S. Constitution and are enabled by a pathetic fawning press. They have proceeded without respect for attorney-client privilege, including threats of contempt and imprisonment. They have violated every conceivable due process right….counsel, confrontation, cross-examination, compulsory process. They have conducted secret hearings leaking selectively and deceptively. This Pelosi Congress will be remembered for wholesale trashing of the U.S. Constitution to satisfy the politically-driven irrational hatred of a president who challenges their fantasies that they are intellectually and morally superior to the rest of us.
Nunes’ phone records were a topic of much discussion Tuesday when the report revealed he had several conversations with Giuliani and two with Parnas. On Wednesday, Nunes released a statement:
The Democrats’ impeachment charade is flailing, and desperate people do desperate things. So Schiff suddenly published phone records of myself, current and former Republican staff members, and a journalist whose reporting he doesn’t like. It’s a gross abuse of power for a congressman to go after his political opponents, staffers, and reporters in this way, but it’s characteristic of the way Schiff has run this entire show. He’s going to need a long rehabilitation period when this is over.
Finally, the publication of John Solomon’s records raised still other issues, this time about freedom of the press. In the excitement over the Democratic report, there was little or no discussion about the problems that might arise from the House Intelligence Committee publishing a journalist’s phone records. But in the past, at least when President Trump was not involved, similar issues have been a concern of press advocates. The Reporters Committee for Freedom of the Press First Amendment Handbook contains the following passage:
Courts … have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.
Searching media coverage Tuesday and Wednesday, there was little or no discussion on whether Schiff’s disclosure touched on Solomon’s First Amendment rights. Solomon is the target of much criticism in mainstream reporting, but he is a journalist who should enjoy the same protections as others in his profession.
Such concerns, as well as concerns about publishing the records of others, were nowhere to be found in the initial media discussion of the Democratic report. Perhaps that will change when the full content of the report sinks in. Or perhaps publication of the phone records will be no more than a footnote in the bitter fight over the Trump impeachment.
