About those DOJ subpoenas of Schiff’s and Swalwell’s records

The New York Times has reported that during a Justice Department investigation into who was leaking classified information about the Russia “collusion” matter early in the Trump presidency, prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. The House Dems were Adam Schiff and Eric Swalwell.

Democrats and their media partners are outraged. Should they be?

It depends on whether there was a sufficient evidentiary basis for the subpoenas. We know that a judge signed off on them, but experience teaches that this fact is inconclusive.

We also know, thanks to Chuck Ross of the Washington Free Beacon, that none other than Peter Strzok, then the top FBI investigator in the inquiry into Russian interference in the 2016 election, sent text messages to colleagues in March 2017 speculating that Democrats from the House Intelligence Committee and on the so-called Gang of Eight were behind media leaks. Strzok’s speculation isn’t conclusive either, but it suggests that the DOJ might not have been wrong to want to investigate some of these folks.

Finally, we know that neither Schiff nor Swalwell was ever charged by the DOJ. But that fact, too, is inconclusive on the question of whether there was sufficient cause to investigate them. It’s not even conclusive on the question of whether, more likely than not, the two were leaking unlawfully.

Congressional Democrats are calling for an investigation of the subpoenaing of the two congressman and others. In my view, the matter should be investigated, although the prospects for a fair investigation by this Congress are practically nil.

Searching the records of one’s political opponents without justification is a very serious matter. But so is leaking classified information. A sound basis for suspecting that congressmen (political opponents, or not) are so leaking provides justification for searching their records.

A congressional investigation, even one run by Democrats, might help us determine whether that sound basis existed. It could also shed light as to who, in fact, was leaking classified information.

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