Judge-less warrants for phone records (and money in the bank for lawyers)

An award-winning investigative journalist at The Washington Post, Carol Leonnig, broke the story about what can be described as a Secret Service “plot” to leak confidential documents in an attempt to embarrass Congressman Jason Chaffetz, an outspoken critic of the Service.  Over a dozen officials at the Secret Service knew about the plot but failed to report this illegal activity.

Instead of focusing on the unlawful leak intended to humiliate Chaffetz, government officials issued judge-less warrants for the telephone records of the “good cop” who spoke with Leonnig when his colleagues failed to follow the law.

WaPo reporter Jerry Markon writes about this episode (“Here’s a way the government can easily get your phone records without even asking a judge”) with some keen observations about “administrative subpoenas,” these judge-less warrants issued by bureaucrat agencies.  Markon writes, “Though they are not widely known to the public, administrative subpoenas had a brief moment in the limelight last week in the controversy over whether the Secret Service tried to smear a Republican congressman.”

Last week I wrote at the Washington Examiner about how administrative subpoenas are relics of the Star Chamber, the secretive council of English kings from the 15th through 17th centuries that is synonymous with abuse of power.  The Star Chamber authorized searches and seizures of books and papers to silence critics of the Crown and religious dissidents.  Judge-less administrative subpoenas “are impossible to reconcile with the Fourth Amendment,” which was written as paramount law governing government to prohibit such abuses.

Privacy advocates have been very vocal criticizing the NSA’s collection of telephone metadata, which, while violating the Fourth Amendment’s requirements of probable cause and individualized suspicion, has not been used to harass individuals, businesses, or nonprofit organizations – to my knowledge, at least.

These privacy advocates have been virtually silent about administrative subpoenas.  Let me correct that: they have supported use of them in a bill being pushed through Congress, as I write:

[A] so-called Email Privacy Act being pushed by Google expressly acknowledges the proper Fourth Amendment process that only judges may issue warrants for federal officials to obtain private emails. The bill, however, would only protect Google and other email storage services, while actually encouraging federal and state bureaucrats to seize private emails directly from us or our businesses through judge-less administrative warrants.

WaPo’s Markon also reports a spot-on observation that partly explains the silence about the widespread use of these institutionalized violations of the Fourth Amendment:

But the news about the subpoena prompted knowing nods from experts and Washington lawyers, who told The Post that the device has become increasingly common in recent years. “Their use is rampant,” said one D.C. lawyer, a former federal law enforcement official who spoke on the condition of anonymity because he now represents corporations and isn’t allowed to speak to the press. “There are a lot of lawyers in this town, and it’s given us a ton of business.”