Glenn Greenwald Jan 20, 2022
In its ongoing attempt to investigate and gather information about private
U.S. citizens, the Congressional 1/6 Committee is claiming virtually absolute
powers that not even the FBI or other law enforcement agencies enjoy.
Indeed, lawyers for the committee have been explicitly arguing that nothing
proscribes or limits their authority to obtain data regarding whichever citizens
they target and, even more radically, that the checks imposed on the FBI
(such as the requirement to obtain judicial authorization for secret
subpoenas) do not apply to the committee.
As we have previously reported and as civil liberties groups have warned,
there are serious constitutional doubts about the existence of the committee
itself. Under the Constitution and McCarthy-era Supreme Court cases
interpreting it, the power to investigate crimes lies with the executive branch,
supervised by the judiciary, and not with Congress. Congress does have the
power to conduct investigations, but that power is limited to two narrow
categories: 1) when doing so is designed to assist in its law-making duties
(e.g., directing executives of oil companies to testify when considering new
environmental laws) and 2) in order to exert oversight over the executive
branch.
What Congress is barred from doing, as two McCarthy-era Supreme Court
cases ruled, is exactly what the 1/6 committee is now doing: conducting a
separate, parallel criminal investigation in order to uncover political crimes
committed by private citizens. Such powers are dangerous precisely because
Congress’s investigative powers are not subject to the same safeguards as
the FBI and other law enforcement agencies. And just as was true of the
1950s House Un-American Activities committee (HUAC) that prompted those
Supreme Court rulings, the 1/6 committee is not confining its invasive
investigative activities to executive branch officials or even citizens who
engaged in violence or other illegality on January 6, but instead is
investigating anyone and everyone who exercised their Constitutional rights
to express views about and organize protests over their belief that the 2020
presidential election contained fraud. Indeed, the committee's initial targets
appear to be taken from the list of those who applied for protest permits in
Washington: a perfectly legal, indeed constitutionally protected, act.
This abuse of power is not merely abstract. The Congressional 1/6
Committee has been secretly obtaining private information about American
citizens en masse: telephone records, email logs, internet and browsing
history, and banking transactions. And it has done so without any limitations
or safeguards: no judicial oversight, no need for warrants, no legal limitations
of any kind.
Indeed, the committee has been purposely attempting to prevent citizens who
are the targets of their investigative orders to have any opportunity to contest
the legality of this behavior in court. As we reported in October, the committee
sent dozens if not hundreds of subpoenas to telecom companies demanding
a wide range of email and other internet records, and — without any legal
basis — requested that those companies not only turn over those documents
but refrain from notifying their own customers of the request. If the companies
were unwilling to comply with this "request,” then the committee requested
that they either contact the committee directly or just disregard the request —
in other words, the last thing they wanted was to enable one of their targets to
learn that they were being investigated because that would enable them to
seek a judicial ruling about the legality of the committee's actions.
But now the committee is escalating its aggressive investigative actions. They
have begun sending subpoenas to private banks, demanding the banking
records of private citizens, and doing so such that either the person never
finds out or finds out too late to obtain a judicial order about the legality of the
committee's behavior. In one case, they targeted JP Morgan with these
subpoenas while knowing that that bank is being represented by former
Obama Attorney General Loretta Lynch; Lynch — unsurprisingly — then
directed her client not to accommodate any requests from its own clients to
ensure judicial review
On November 22, the 1/6 Committee served a subpoena on Taylor Budowich
— a former spokesman for the Trump campaign who never worked for the
U.S. Government — that requested a wide range of documents as well as his
deposition testimony. On December 14, Budowich voluntarily complied by
handing over a large amount of his personal records, and then, on December
22, he flew to Washington at his own expense and submitted to questioning.
There is no suggestion that Budowich was engaged in any violence or other
illegal acts at the Capitol on January 6. Their only interest in this private
citizen is his connection to the Trump campaign and his stated view that he
believed the 2020 election was marred by fraud.
After he furnished the committee with those documents and then testified,
Budowich learned from others that the committee was issuing subpoenas
directly to the banks used by other individuals for their personal accounts. He
thus requested that his lawyer notify his own bank, JPMorgan Chase, that he
would object to their cooperation with any subpoena without first providing
notice to him so that he can have time to seek a legal ruling in court.
Typically, citizens learn when law enforcement agencies such as the FBI
serve subpoenas to third-party providers such as banks or internet
companies. That allows a crucial right: to contest the legality of the action in
court before the documents are supplied. But when such a subpoena is
concealed from the person, it prevents them from obtaining judicial review. In
general, citizens learn of FBI subpoenas, and the FBI (with rare exceptions)
has the power to impose a "gag order” or otherwise prevent the person from
learning about it only if they first persuade a court that such an extreme
measure is warranted (by arguing, for instance, that a terror suspect will flee
or destroy evidence if they learn they are being investigated). That safeguard
ensures that in most cases, a citizen has the right to seek judicial protection
from an illegal act by an investigative body.
But the 1/6 Committee recognizes no right of any kind and no limits on its
power. On November 23 — the day after it served a subpoena on Budowich
himself — it served a subpoena on Budowich's bank, JPMorgan. The original
date for the bank to produce the records was December 7, but JPMorgan —
advised by Loretta Lynch as its legal counsel — bizarrely requested that the
deadline be extended until December 24: the day before Christmas, knowing
that courts would be closed that day and the next. It was only on December
21 — when Budowich was in Washington for his testimony before the
committee — did JPMorgan send him notice at his home that it had received
a subpoena and intended to produce the requested documents on December
24: just three days later. As JPMorgan and Lynch knew would happen,
Budowich did not see the letter until he arrived home on the evening of
December 22: less than forty-eight hours before the bank told him they were
going to give up all of his financial records to the committee.
Upon discovering that the committee had subpoenaed his bank, Budowich's
lawyers immediately advised JPMorgan that they had legal objections to the
subpoena, and requested that — given it was about to be Christmas Eve and
the courts would be closed — the bank seek an extension from the
committee to enable Budowich to seek a judicial ruling. But the bank, advised
by Loretta Lynch, refused — and told him they intended to turn the
documents over on Christmas regardless of whether that gave him time to
request judicial intervention. The bank even refused to provide a copy of the
subpoena they received from the committee, which Budowich, to this very
day, has not seen.
Budowich's lawyers did everything possible to seek judicial intervention
before JPMorgan gave all his financial documents to the committee, but the
timing agreed to by the committee, Lynch and the bank — documents
produced on Christmas Eve, with notice to him arriving just a couple days
before when he was testifying in Washington — made it impossible, by
design. As a result, JPMorgan gave all of his banking records to the
committee without even seeking an extension.
Budowich was therefore left with no alternative but to file an after-the-fact
lawsuit against House Speaker Nancy Pelosi and the committee members,
seeking an emergency injunction against the committee's use of his banking
records. In response, both the committee and JPMorgan argued that the
entire question was “moot” given that they already handed over the
documents.
In other words, lawyers for the committee and Loretta Lynch created a plot
whereby JPMorgan would notify Budowich of its intent to hand over the
documents right before Christmas, so as to purposely deny him time to seek
a court ruling, and then used the fact that he was "too late” in filing as a
ground for arguing that the court should shut its doors to him and refuse to
even give him a hearing. The court agreed that Budowich's request for an
emergency injunction was “moot” given that the bank already handed
supplied the documents, but agreed to rule on the merits of the arguments
about whether the subpoena was legal.
The parties’ briefs on this question were submitted to an Obama-appointed
federal judge, James Boasberg, in Washington. The oral argument on
Budowich's request to enjoin the use of his banking records by the committee
was held earlier on Thursday, and Judge Boasberg quickly rejected
Budowich's objections to the subpoena. It will now be appealed to the Court
of Appeals, but the issues presented by the committee's arguments are
chilling.
At the hearing, the committee's lawyers essentially repeated the same
argument they advanced in their legal brief: namely, that none of the legal
safeguards imposed on the FBI and other law enforcement agencies to guard
against abuse of power apply to this Congressional committee, which
therefore enjoys virtually absolute power to do what it wants.
That is not an exaggerated summary of the committee's argument. The
primary law on which Budowich is relying is The Right to Financial Privacy
Act (“RFPA”), which prohibits any “financial institution, or officers, employees
or agent of the financial institution” from "provid[ing] to any Government
authority access to or copies of, or the information contained in, the financial
records of any customer” unless they have first complied with the requirement
of that law. Among the key requirements is that a “financial institution shall
not release the financial records of a customer until the Government authority
seeking such records certifies in writing to the financial institution that it has
complied with the applicable provisions of this chapter.” As Budowich's
lawyers argued, the key to the law is that a person whose financial records
are sought must receive notice of that attempt and be given sufficient time to
challenge it in court:
Both 12 U.S.C. §§ 3405 (administrative subpoena or summons) and 3408
(formal written request) require that a copy of the subpoena or request
“have been served upon the customer or mailed to his last known address
on or before the date on which the subpoena or summons was served on
the financial institution” together with a formal statutory notice allowing ten
(10) days from the date or service or fourteen (14) days from the date of
mailing the required notice. See 12 U.S.C. §§ 3405, 3408. Additional
provisions of RFPA establish the right of a financial institution customer to
challenge a request for their financial records in an appropriate United
States District Court, and that proceedings involving such challenges
should be completed or decided within seven (7) calendar days of the filing
of any Government response. See 12 U.S.C. § 3410(a)-(b).
The committee did not deny that it failed to meet these requirements.
Obviously, they could not argue that, given that the plan they created with
JPMorgan and its lawyer, Loretta Lynch, was designed to ensure that
Budowich have no time to obtain a judicial ruling before his bank records
were handed over. Instead, the committee's response is they do not have to
comply with this law. “The Act restricts only agencies and departments of the
United States, and the Select Committee is neither,” the committee's lawyer
contended. In fact, they explicitly argued that these safeguards were meant to
be imposed only on the FBI and other law enforcement agencies, but were
intended to exempt Congress even when, as here, they are clearly engaged
in investigating private citizens for potential crimes. “Multiple provisions of the
statute underscore that Congress intended 'Government authority' to mean
an executive branch agency or department,” the committee's lawyers wrote in
an assertion of power breathtaking in its scope and limitlessness.
All of the other committee's arguments are similarly designed to bestow on
itself absolute and unlimited power in how it investigates private citizens, and
to insist that the judiciary is without power to impose limits on it. The
committee insists, for instance, that it can investigate anyone it wants in
connection with 1/6 even if its motive is not to enact new laws and even if the
documents it seeks (Budowich's financial records) have no relationship to any
proposed new laws. That is because, it says, “Congressional committees are
not required to identify a specific piece of legislation in advance of conducting
an investigation of the pertinent facts. It is sufficient that a committee’s
investigation concerns a subject on which legislation 'could be had.'"
Such a principle, if accepted, would destroy any limits on Congress’s ability to
investigate citizens (clearly, it was possible for the McCarthy-era
Congressional investigations to lead to new laws even though, as the
Supreme Court twice ruled when striking them down, that was clearly not its
primary purpose). But Judge Boasberg nonetheless accepted the
committee's argument on the ground that an appellate court had already
ruled that the 1/6 Committee had a valid legislative purpose and he was
therefore bound by that decision.
The committee's other arguments are even more extreme: namely, that “the
Constitution’s Speech or Debate Clause provides absolute immunity to
Members and committees when performing legislative acts" and that
“sovereign immunity prohibits litigation against Congress to which it has not
consented, and no such consent has been.” That would mean that the 1/6
Committee could literally do whatever it wanted to citizens, and no court
would have the right even to review the legality or constitutionality of what it is
doing let alone put a stop to it.
What happened during the first War on Terror — and so many other events
that were perceived as traumatic — is instructive here. So many Americans
were so horrified by the carnage of that day that, for years, many did not care
or want to hear about legal niceties, constitutional limits or civil liberties
regarding the government's actions. Anything the government did in the
name of responding to or retaliating for 9/11 became inherently justified, and
anyone who objected — no matter the principles cited — was deemed to be
on the side of the terrorists.
The same dynamic is prevailing here. There are serious constitutional limits
on the ability of Congress to investigate private citizens. It is blatantly abusive
to scheme with JPMorgan and its counsel Loretta Lynch to ensure that a
citizen has no time to seek judicial relief regarding the committee's attempt to
obtain mounds of his personal and financial records. And, in general, the
committee has been on a rampage targeting not only Trump officials or
people who engaged in criminal behavior at the Capitol on January 6 but a
wide group of citizens whose only crime appears to be their political beliefs
and associations — exactly what the Supreme Court cited when striking
down the excesses of Congress’s McCarthy-era probes of citizens.
But with the media overwhelmingly cheering anything done in the name of
stopping the Trump movement and those who supported 1/6 in any way, all of
these civil liberties concerns and constitutional protections are run roughshod
over in the name of safety. The latest arguments from the Congressional 1/6
Committee amount to little more than an assertion of unfettered power for
Adam Schiff, Liz Cheney and the rest of the committee members to dig into
the lives of anyone they want without limits.
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