According to Fox News senior judicial analyst and Fox Nation host Judge Andrew Napolitano, it was “unseemly” for House Intelligence Committee Chairman Adam Schiff, D-Calif. to release phone records, apparently of fellow lawmaker Rep. Devin Nunes (R-Calif.), and Schiff may have and ethics problem.
“On Tuesday, Schiff put out his committee’s 300-page impeachment inquiry report, which included records of Nunes’ calls, reportedly obtained through a subpoena of AT&T and Verizon,” Fox News reports. “The records, which do not reveal the contents of the conversations, apparently show that a phone number associated with Nunes received calls from individuals central to the impeachment inquiry — the president’s personal attorney, Rudy Giuliani, and Giuliani-associate Lev Parnas.”
Napolitano weighed in on the matter, telling Fox News that Schiff, “probably should have said ‘a member of Congress'” instead of naming Nunes.
“[He] could even have said ‘a member of Congress on the House Intelligence Committee’ but there is no reason to put Congressman Nunes’ name in there,” Napolitano suggested. “If Congressman Schiff did this for a partisan political reason there is an ethical case,” he continued. “If he did it to tie in the impeachment case against the president then there is no ethical case against him.”
“The ethics prosecutors in the House are truly bipartisan and it is the only committee in the House that has equal numbers of Republicans and Democrats so he is not going to get off the hook, because the Democrats run the House. This will rise or fall on its merits — that is whether or not there was an ethical breach.”
In an opinion piece in the Wall Street Journal, Kimberley A. Strassel said in an effort “to paint Donald Trump as a lawbreaker, Mr. Schiff has himself trampled law and responsibility.”
“That’s the bottom line in Mr. Schiff’s stunning decision to subpoena the phone records of Rudy Giuliani and others,” Strassel said. “Mr. Schiff divulged the phone logs this week in his Ukraine report, thereby revealing details about the communications of Trump attorneys Jay Sekulow and Mr. Giuliani, ranking Intelligence Committee member Devin Nunes, reporter John Solomon and others. The media is treating this as a victory, when it is a disgraceful breach of ethical and legal propriety.”
“If nothing else, Mr. Schiff claims the ignominious distinction of being the first congressman to use his official powers to spy on a fellow member and publish the details. His report also means open season on members of the press. Mr. Giuliani over months has likely spoken to dozens of political figures and reporters—and the numbers, dates and length of those calls are now in Democrats’ hot little hands. Who gets the Schiff treatment next? If you think politics is ugly now, imagine a world in which congressional partisans routinely track and expose the call lists of their political rivals and disfavored media.
In the piece, Strassel notes that phone carriers cannot release phone records under Federal law, with some exceptions. While federal and state law-enforcement agencies are included in those exceptions, lawmakers aren’t.
“There does not appear to be any basis to believe that a congressional committee is authorized to subpoena telephone records directly from a provider—as opposed to an individual,” former Attorney General Michael Mukasey told Strassel.
Sen. Rand Paul (R-Kentucky) said that Schiff’s acquiring and publishing personal phone records “was brazen and shameful.”
“While it may not have been illegal (because Congress writes its own rules on investigations) it certainly was wrong. It certainly tramples on rights normally held dear by the left,” Paul wrote. “Part of the problem lies with Congress writing its own rules for subpoenas and investigations, without any thought of due process. For example, when someone attempts to get an attorney’s records in a judicial proceeding, he or she has to show why and must prove it to a court, and then a special judge is appointed to assist with the review. Care is taken. Attorney-client privilege is assumed unless there is evidence of a crime by the attorney. That didn’t happen here because Congress and Schiff don’t think they need to follow this standard.”
“Part of the problem also lies with our ‘third-party doctrine’ in privacy law, something I’ve been fighting for years. It goes like this: your records are not necessarily your records if they are held by a third party – like a phone company, an Internet service provider, a credit card company, or a physician.”
The WSJ piece notes that law-enforcement subpoenas are generally supervised by a court to “ensure they have a valid purpose,” but “Congress has no outside check on its subpoena powers.”
Schiff was, therefore, able to “unilaterally decided” to subpoena the phone records of private citizens, Strassel noted.
former Attorney General Mukasey says Schiff’s targeting of Giuliani “raises questions of work-product and attorney-client privilege.” Schiff is now potentially exposing the legal strategies of Giuliani’s client, Trump, who he is investigating.
Strassel suggests that Schiff may have made himself “legally vulnerable,” citing constitutional lawyer David Rivkin who said, “The subpoenas aren’t related to legitimate congressional oversight.”
— Tom Fitton (@TomFitton) December 3, 2019
Police State tactics. https://t.co/xKP4zSgYkh
— Sebastian Gorka DrG (@SebGorka) December 6, 2019
Unseemly for Schiff to Release Nunes Phone Records,.. Possible Ethical Breachhttps://t.co/zI4MPi9nfn
— Judge Napolitano (@Judgenap) December 6, 2019
The Technology 202: Phone records from AT&T and Verizon obtained in impeachment inquiry spark controversy https://t.co/n9NNvYj55v
— Post Politics (@postpolitics) December 6, 2019