Chairman Nadler Statement for Hearing on "Secrecy Orders and Prosecuting Leaks: Potential Legislative Responses to Deter Prosecutorial Abuse of Power"
Washington, June 30, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a hearing on "Secrecy Orders and Prosecuting Leaks: Potential Legislative Responses to Deter Prosecutorial Abuse of Power":
"On May 7, 2021, the Washington Post reported that the Trump Administration secretly obtained phone records and had sought email records of certain of its reporters. Later reports showed that the Department made similar attempts to access the communications records of a CNN reporter and multiple journalists at the New York Times.
"On June 10, 2021, it was reported that the Trump administration had also requested the records of multiple Members of Congress, their family members, and congressional staff.
"On June 13, 2021, the New York Times reported that the Trump Administration had sought similar records from accounts associated with former White House Counsel Don McGahn.
"Even if that were the end of the story—if all the Department had done was target these reporters and these Members of Congress this one time—we would have reason to be concerned. A free press is vital to our democratic system, and the Constitution grants extraordinary protections to the official communications of Members of Congress and their staff.
"But, of course, these reports do not constitute an isolated incident. The Department of Justice has a long history of targeting reporters and misusing its surveillance authorities to bypass basic Constitutional protections.
"President Nixon’s Justice Department tried to silence the publication of the Pentagon Papers.
"President Bush’s Justice Department went after the reporters who helped expose the NSA’s expansive warrantless surveillance programs.
"President Obama’s Justice Department went so far as to charge a reporter as a co-conspirator in violation of the Espionage Act.
"President Trump’s Justice Department appears to have targeted reporters and Members who were focused on investigating Russia’s interference in the 2016 election.
"And now we know that President Biden’s Justice Department sought to renew at least some of the secrecy orders associated with these cases.
"In each of these cases, the Department took advantage of outdated policies that make secrecy the norm, not the exception to the rule.
"In fact, although these recent cases appear to have targeted journalists, Democratic members of Congress, and the former White House Counsel—we have no immediate way of knowing how big the problem is, because each of these cases was accompanied by a DOJ-requested, judge-imposed gag order that prevents anybody from talking about them for years.
"Now, we have asked the Department to explain the extent of these troubling cases. But this hearing is not about that investigation—at least not directly.
"Today, the Committee is going to focus on a related policy problem that has troubled Members on both sides of the aisle: namely, that technology has vastly outpaced the law when it comes to the government demanding your data from a third-party provider, and that the gag orders accompanying those demands have become standard practice in cases where timely notice would make far more sense.
"In the 21st century, federal prosecutors no longer need to show up to your office. They just need to raid your virtual office. They do not have to subpoena journalists directly. They just need to go to the cloud.
"And rather than providing Americans with meaningful notice that their private electronic records are being accessed in a criminal investigation, the Department hides behind its ability to ask third-party providers directly. They deny American citizens, companies, and institutions their basic day in court and, instead, they gather their evidence entirely in secret.
"Just because it is easier for prosecutors to seek sweeping amounts of data from these service providers, does not mean that they should be allowed to do so.
"This Committee has long recognized the Justice Department’s need to investigate the unauthorized disclosure of classified information and it supports those investigations whenever they are properly predicated. A responsibility to combat leaks is not, however, carte blanche authority to engage in sweeping surveillance of American citizens, businesses, newsrooms, and universities. It was not tolerable after 9/11 and it is not acceptable now.
"If history and recent reporting has taught us anything, it is that we cannot trust the Department to police itself. It is imperative that the Committee fulfill its role and ensure our laws are keeping pace with rapidly changing technology. We need to guard against future overreach of federal prosecutors by implementing reform now."I thank our witnesses for being here today. I look forward to hearing their ideas on what reforms we should consider moving forward. And I look forward to working with Mr. Jordan and our Republican colleagues on this matter."