Carol Platt Liebau

Update: A member of Congressman Nunes' staff reached out to clarify that the DOJ seized phone records, not from the cloakroom itself, but from the Capitol. Even so, it is problematic from a separation of powers standpoint for the Executive branch to be monitoring the activities of a co-equal branch of government -- which, to the extent it's hoping to trace conversations between the press and Members of Congress, is exactly what it's doing.

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Yesterday, on his radio show, Hugh Hewitt interviewed Congressman Devin Nunes -- who reported that as part of its probe into the AP, the Obama administration had actually wiretapped the Congressional cloak room

HH: The idea that this might be a Geithner-Axelrod plan, and by that, the sort of intimation, Henry II style, will no one rid me of this turbulent priest, will no one rid me of these turbulent Tea Parties, that might have just been a hint, a shift of an eyebrow, a change in the tone of voice. That’s going to take a long time to get to. I don’t trust the Department of Justice on this. Do you, Congressman Nunes?

DN:No, I absolutely do not, especially after this wiretapping incident, essentially, of the House of Representative. I don’t think people are focusing on the right thing when they talk about going after the AP reporters. The big problem that I see is that they actually tapped right where I’m sitting right now, the Cloak Room.

HH: Wait a minute, this is news to me.

DN: The Cloak Room in the House of Representatives.

HH: I have no idea what you’re talking about.

DN:So when they went after the AP reporters, right? Went after all of their phone records, they went after the phone records, including right up here in the House Gallery, right up from where I’m sitting right now. So you have a real separation of powers issue that did this really rise to the level that you would have to get phone records that would, that would most likely include members of Congress, because as you know…

It's not entirely clear to me whether Congressman Nunes means that the telephone in the Cloak Room was one of the numbers for which the DOJ sought a subpoena in the AP matter and wiretapped, or whether the DOJ subpoenaed Cloak Room phone records (this latter explanation seems most likely).  But in a broad sense, I'm not sure the distinction really matters.

The fact is that The White House knowingly sought and obtained confidential information from a place where Congressmen have a reasonable expectation of privacy.  That constitutes a serious separation of powers issue, as the President has no business seeking or obtaining confidential information pertaining to the inner workings of a co-equal branch of government conducting its business.  And whether it was simply phone records of calls made or received or the actual recording of calls, it is difficult to fathom how the administration could have gathered the kind of information it was seeking without significant intrusion and gathering of inside knowledge of the workings of Congress.

Now the question has to be whether any of the information thus garnered was used (or rather, misused) for political purposes.  With the crew in this administration, anyone care to lay any bets?


Carol Platt Liebau

Carol Platt Liebau is an attorney, political commentator and guest radio talk show host based near New York. Learn more about her new book, "Prude: How the Sex-Obsessed Culture Hurts Young Women (and America, Too!)" here.