Below is my column in the New York Post on the recently disclosed FBI investigation into the communications of Republican House staff members investigating the FBI.
Here is the column:
The House Judiciary Committee is investigating why the FBI subpoenaed the emails of leading Republican congressional staff members.
In his most recent appearance before Congress, FBI Director Christopher Wray refused to provide any new information on various scandals but seemed eager to assign past abuses to his predecessor, James Comey.
But the dates on these subpoenas do not support Wray’s use of Comey as the department’s sin eater.
Wray has tried to portray himself as in the dark on many scandals while also insisting he is a hands-on administrator. This scandal cuts against . . . well . . . both Wrays.
While many on the left still celebrate Comey’s tenure, an array of serious constitutional violations have been established as occurring under his leadership, including massive unconstitutional surveillance practices, false statements to courts and his own individual violations, such as stealing FBI material and leaking the contents to the press after his termination.
I testified Friday on the abuse of the Foreign Intelligence Surveillance Act under Comey and the need for Congress to end or to reform Section 702 under that act.
The House Judiciary Committee is investigating why roughly five years ago the FBI reportedly seized emails from Google belonging to Kash Patel, the chief investigator for then-House Intelligence Committee Chairman Devin Nunes, as he and other staff were making headway in their examination of the Russian collusion investigation, including political bias and false statements by FBI officials.
That was shortly before the release of the report exposing the failures in the Russia collusion scandal. A second staffer was also targeted.
The letter from the Committee to the Justice Department refers to subpoenas issued to Google in 2017 for emails and cellphone data.
The demand seems quintessentially Comey-esque.
Former FBI Director James Comey has been all the rage on the speaking circuit discussing his curious view of “ethical leadership,” which often seemed to include the knowing violation of constitutional provisions or agency rules.
He thrilled audiences, for example, with his lighthearted description of how he violated department rules to nail Trump national security adviser Michael Flynn.
He delighted audiences with how he told underlings “let’s just send a couple guys over” to trap Flynn.
Yet Just the News reportedly has the subpoenas and states they were dated Nov. 20, 2017, with the materials to be sent to the Department of Justice by Dec. 5, 2017.
Comey was fired in May 2017, and Wray began his tenure in August 2017. It is not clear if this targeting of congressional staffers began under Comey.
It is hard to imagine such an extraordinary move being taken without the director’s knowledge.
So Wray is either engaging in willful blindness or failed to exercise control of his own department.
There was a time when members of both parties would be outraged and unified in responding to such tactics by a federal agency.
All members should want to know the rationale for this intrusive move by the FBI as it was being investigated by these aides.
James Madison designed a constitutional system with a frank understanding of the factional and petty impulses of politicians.
Yet he believed he had created a system of checks and balances that could rely on the institutional self-interest of members to jealously protect their powers under Article I.
Madison believed that despite party affiliations, “ambition must be made to counteract ambition.”
Madison never envisioned the 118th Congress, where politics regularly trumps institutional and constitutional values.
The ambitions rarely seem to run toward constitutional protections and privileges.
Democrats certainly disagree with Republicans on the Russian-collusion investigation, and they are no fans of Patel or Nunes.
But there is a far more important issue at stake in this controversy.
Subpoenaing the records of members of Congress or their staffs is a direct challenge to the oversight and legislative functions under Article I of the Constitution.
The FBI knew Google would withhold notice of the subpoenas for five years.
Wray may have to offer more than “Damn that Comey” on this one.
Jonathan Turley is an attorney and professor at George Washington University Law School.