What you need to know about the Justice Department snooping on journalists and Democrats in Congress

Critics of former president Donald Trump are increasingly enraged by revelations that during his presidency, the Justice Department used subpoenas to obtain data belonging to the president’s perceived political enemies. From journalists in contact with government leakers to Democratic members of Congress to even the White House counsel, the administration appears to have gone alarmingly far in using legal force to investigate its targets.

Anger at the developing scandal has reached a fever pitch, with calls for former attorneys general Jeff Sessions and Bill Barr to testify on Capitol Hill. House Judiciary Committee Chairman Jerrold Nadler – who is leading other investigations into Mr Trump – has said his panel will now investigate what happened.

To understand why this affair is so significant and what implications it could have for the Justice Department under Joe Biden, here’s where it all began.

Who was targeted, and for what?

After only a few months in office in 2017, the nascent Trump administration was already furiously hunting for leaks, which were driving an incredible volume of news coverage and attracting formal investigations from Congress.

While news coverage of the presidency was lurid and highly detailed from the start thanks to an unusually high volume of information flowing from inside the White House, Mr Trump and his staff were especially angry at leaks related to Robert Mueller’s investigation into the Trump team’s contacts with Russian agents during the 2016 election.

While it was known during the Trump years that the executive branch sought to access some journalists’ data in its hunt for their sources, many have only recently learned they were targeted as gag orders that prevented the subpoenaed data companies from revealing they were asked for the data at all.

Among those now discovering their records were accessed are journalists at the Washington Post, which was informed in May that the department had issued subpoenas for the phone records of three reporters covering a period from April-July 2017. Similarly targeted was veteran CNN correspondent and Pentagon reporter Barbara Starr, whose records from a similar period were sought in 2020.

In a recent op-ed, she wrote: “I had absolutely no knowledge that there were secret court proceedings against me in 2020 until late May 2021, when CNN’s most senior attorney, David Vigilante, was cleared to tell me there was a letter from the Justice Department waiting for me at CNN’s Washington bureau...

“All of this is a sheer abuse of power in my view – first against CNN and myself, since our work is and should always be protected by the First Amendment. But more importantly and more significantly, it is an abuse against the free press in this country, whether you are a television network correspondent or a reporter at a small town newspaper uncovering wrongdoing.”

These reports and others have drawn outrage, and have helped press Joe Biden and current Attorney General Merrick Garland to codify a policy on how and when the department can use compulsory legal tools to demand journalists’ information.

However, it has since become clear that the Trump administration’s aggressive investigations didn’t just target journalists.

Who else did the Trump administration go after?

As first reported by the New York Times, the Trump Justice Department also subpoenaed Apple for metadata from the accounts of at least two Democratic members of Congress, as well as their aides and even family members – one of them a minor.

Specifically targeted were Adam Schiff, head of the House Intelligence Committee, and Eric Swalwell, who sits on the same panel. The committee’s Democrats were seen by the Trump administration as dire enemies thanks to their investigations into the Russian collusion saga, and under Mr Trump’s first attorney general, they were singled out for covert investigation.

According to the Times, the probe into Mr Schiff, Mr Swalwell and their families went nowhere under Mr Sessions but was revived by Mr Barr.

Aside from Democrats, the department also targeted Don McGahn, who resigned as White House Counsel 18 months into Mr Trump’s tenure , while he was still working for the president. Again, his and his wife’s data was sought via a subpoena to Apple, accompanied by a gag order that banned the company from revealing any information to Mr McGahn.

Why are people saying this is “worse than Nixon”?

Any president caught hunting down their enemies inevitably attracts comparisons with Richard Nixon, but in this case, people are going even further.

John Dean, who served as White House counsel under Nixon and in the end turned on him, warned that whereas Mr Nixon did not have the benefit of a pliable Justice Department, Mr Barr in particular facilitated an abuse of power that amounted to “Nixon on stilts and steroids”.

For those on Mr Trump’s side, the words of a retired veteran of a long-ago administration might be easily dismissed (fairly or not) as politically motivated hyperbole. But all partisan concerns aside, to have the speaker of the House comparing the behaviour of Mr Trump’s White House to the dark machinations of the Nixon regime is quite something.

“What the administration did – the Justice Department, the leadership of the former president – goes even beyond Richard Nixon,” Ms Pelosi told CNN’s State of the Union. “Richard Nixon had an enemies list. This is about undermining the rule of law.

“And for the attorneys general – [Bill] Barr and [Jeff] Sessions, at least two – to say that they didn’t know anything about it, is beyond belief. So we will have to have them come under oath to testify about that.”

What might happen next?

The Department of Justice’s own inspector general is investigating the department’s use of subpoenas, a probe that has been welcomed by Democrats on Capitol Hill. Committee chairs in both houses of Congress are also planning to summon relevant Trump-era appointees to explain the story in public hearings.

Among those they have mentioned is John Demers, who is in the process of stepping down as head of the department’s national security division. (He had reportedly planned to resign by the end of June even before the scandal broke.)

But if previous congressional hearing performances by Mr Barr in particular are anything to go by, it’s far from guaranteed that Mr Trump’s former lieutenants will give them much information. And given Mr Barr successfully stonewalled summons by congressional committees for months at a time even while in office, it’s not a given that the Democrats will actually get Mr Barr and Mr Sessions up to Capitol Hill at all.

In the Senate, Republicans look set to blockade any testimony themselves. GOP Senate leader Mitch McConnell said of the threat to subpoena the former attorneys general that Democrats are giving in to “the urge to pick at the scab of politically motivated investigations”. Insisting that both Mr Sessions and Mr Barr served with “honour and integrity”, he also said that the department they headed is “empowered to investigate criminal conduct of members of Congress and their staff”.

This does not address the central questions of the scandal: who exactly ordered the department to seek this data, and who authorized the subpoenas; whether the data was seized in accordance with department guidelines and the law; what data was obtained, and how it was used; and whether any other perceived Trump enemies were also targeted for political reasons.

As with all other autopsies of the Trump administration’s strange and legally dubious doings, those questions may not be definitively answered for some time – at least, not without months or years of gruelling political and legal pressure.