WASHINGTON — With little fanfare or even an official floor vote, the U.S. Senate decided Wednesday it would cooperate in a Justice Department investigation into whether a former Senate Intelligence Committee staffer improperly leaked classified material to reporters.
As Ohio Republican Rob Portman temporarily presided at the very end of the day’s session, the Senate gave unanimous consent to a resolution authorizing the Senate Intelligence Committee to release records related to the investigation into whether James Wolfe, a former committee aide, leaked the information, including via encrypted text messaging.
Wolfe was indicted late Thursday and charged with lying to investigators about his contacts with three reporters. According to the indictment, Wolfe, whose job was to safeguard classified information, denied ever giving classified material to journalists. Wolfe retired in May.
That indictment is part of a wide-ranging investigation that also spurred prosecutors to secretly seize a New York Times reporter’s phone and email records back in February, according to the Times. The reporter, Ali Watkins, dated Wolfe for three years, the Times reported. She worked for Buzzfeed and Politico during that time.
A a source close to the Senate Intelligence Committee, who spoke only on the condition of anonymity because of the sensitive topic, said this measure was considered uncontroversial because both Democratic and Republican leaders of the Senate, the chairman and ranking Democrat of the committee, and all members of the Senate panel were familiar with and agreed to the resolution. A spokesman for Senate Majority Leader Mitch McConnell echoed those comments, saying "these types of measures are always done by (unanimous consent) with the support of both leaders."
However, the source also said the Senate committee was unaware that Justice had searched the reporter’s phone records until they read it in the New York Times after approving the resolution. "There’s nothing in the resolution that allows the FBI to go after a reporter," the source said. "It does, however, allow the FBI to go after someone who lied to them."
Senate leadership put the issue up for consideration under a process called unanimous consent — where both parties agree that the measure is uncontroversial and it automatically passes unless someone objects.
That process can occasionally be controversial: A 2016 law that critics say hindered the Drug Enforcement Administration’s ability to prosecute opioid distributors also passed via unanimous consent. That law was later the subject of a 60 Minutes investigation into whether Congress indirectly helped fuel the opioid epidemic. Many senators admitted they did not know they had approved it.
The procedure is more often used for less controversial matters. For example, earlier Wednesday, the Senate gave unanimous consent to a measure designating the new veterans museum going up on West Broad Street in Columbus as the National Veterans Memorial and Museum.
Portman was one of the few members on the Senate floor when the Intelligence Committee resolution was approved. After delivering remarks on another topic, the Ohio Republican fulfilled wrap-up duties at the request of McConnell — a task that included calling for passage of several measures that had been by cleared by both parties and appropriate committees of jurisdiction. Those measures included the resolution authorizing the Senate to cooperate with the investigation.
Portman spokeswoman Emily Benavides said Portman declined to comment on the investigation, because he is not a member of the Senate Intelligence Committee and is unfamiliar with the details of the case. But she also did not conflate the the Senate vote with the Justice Department’s decision to investigate the reporter’s phone records.
"Sen. Portman is a strong supporter of the First Amendment, which includes freedom of the press," she said.
Jennifer Donohue, a spokesman for Sen. Sherrod Brown, said the husband of a Pulitzer-Prize-winning journalist is "deeply troubled" by the federal confiscation of a reporters’ records.
"That seizure was a completely separate action taken by the Department of Justice months ago and not authorized or condoned by the resolution Congress passed Wednesday night," she said. "The resolution simply authorized DOJ to access Intelligence Committee documents as part of its investigation into whether an employee of the Senate broke the law. If a Senate employee did break the law, Senator Brown believes he should be held accountable, and Senator Brown supports the committee cooperating with the FBI to ensure all relevant facts are considered in the case."
Journalists and advocates for a free press expressed alarm at the prospect that the Justice Department had mined a journalists’ records for sources. In pursuing the investigation, the Trump administration is following a precedent set by the Obama administration, which also secretly delved into journalists’ records in leak investigations.
But the Trump administration has ramped up the rhetoric against journalists, with Trump repeatedly complaining about leakers and referring to the media as "the enemy of the people."
Heidi Kitrosser, a law professor at the University of Minnesota, said Trump has continued an unfortunate precedent begun by Obama in aggressively pursuing leakers by investigating who’d been in communication with journalists. She said she worries that Trump might outpace those attacks.
She said sources need to be guaranteed some level of confidentiality in order to help make sure that those in power are held accountable.
"The heads of agencies, presidents, people in power are like the rest of us — they don’t like to be criticized, don’t like to be questioned, don’t like their mistakes to be pointed out," she said. "Generally they are not going to approve of employees sharing inconvenient information with the press. But sometimes that information is very much in the public interest, and there needs to be some level of protection of confidentiality for journalists in order to have relationships with sources."