PPSA Files Freedom of Information Act Request: Are Safeguards Against Political Misuse of Investigations Still in Effect?

The Project for Privacy and Surveillance Accountability filed a Freedom of Information Act (FOIA) request with the U.S. Department of Justice asking for records on how the department may be modifying, interpreting or replacing two key memos establishing safeguards against political misuse of federal investigations.
 
“In these contentious times, wouldn’t it be refreshing if one administration endorsed the policies of a previous administration to extend legal protections to people in both parties?” said Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability. “The Biden Administration could do this by making permanent Justice Department rules intended to keep politics out of federal investigations. We hope our FOIA request will spur the administration to take this positive action, assuming they haven’t already.”
 
Last August, then-Attorney General William Barr reacted with memos establishing new rules after the fiasco of the FBI’s investigation of Trump campaign volunteer, Carter Page. This investigation had included the submission of a forged document in sworn testimony before the Foreign Intelligence Surveillance Court. A report from the Department of Justice inspector general documented 17 serious errors of omission and commission made in that investigation. The inspector general followed up with another report examining a sampling of 29 other, unrelated FISA applications involving U.S. citizens, finding errors in each one.
 
Among the many safeguards in Barr’s new policies were requirements regarding the investigation of a federal elected official, candidate and staff. One such requirement would be a “defensive briefing” of the target, unless the FBI Director determines in writing that such a briefing would not be appropriate. The attorney general would also have to approve surveillance applications for Americans in these categories.

In these contentious times, wouldn’t it be refreshing if one administration endorsed the policies of a previous administration to extend legal protections to people in both parties?

PPSA’s FOIA asks the Department of Justice for all records supplementing, modifying, interpreting or replacing the memos. It also asks for records for preparations to comply with a required assessment of the implementation of the new rule.

Barr wrote that the “American people must have confidence that the United States Government will collect and use this information in a manner that protects the civil liberties of all Americans, avoids interference in the political process, and complies with the Constitution and the laws of the United States.”

Schaerr noted: “If anything, the need to rebuild confidence in the integrity of the government is even greater than it was a year ago. Trust is at an all-time low. Republicans are still smarting from the Carter Page investigation predicated on an opposition research document. Democrats, for their part, voice public concern about the potential for unequal law enforcement. Both parties are making allegations about elections. Putting a Democratic imprimatur on these policies would be reassuring to Americans of all stripes.”