Capitol Police’s new vetting practices raise ‘First Amendment concerns,’ whistleblowers’ lawyer says

By | April 19, 2022

After a year of intense scrutiny following the Jan. 6, 2021, insurrection, the Capitol Police is facing fresh criticism of its intelligence-gathering tactics from some of its own former analysts.

An employment lawyer, who represents five people who worked in the department’s intelligence division in January of 2021, says his clients believe Capitol Police conduct veered beyond protecting members to raising First Amendment concerns.

Dan Gebhardt, of Solomon Law Group, says his clients have long harbored grave concerns about the Capitol Police intelligence division’s practices. In a lengthy statement to POLITICO, Gebhardt laid out some of those concerns, underscoring tensions that have quietly plagued the department.

Among the allegations from Gebhardt’s clients: Capitol Police intelligence analysts were directed to scrutinize a religious leader who officiated a funeral that a member of Congress attended. Analysts were also directed to “conduct research” on the relatives of members of Congress as part of their security work, according to his statement. And they didn’t like it.

“Analysts’ complaints were filed with the USCP chain of command, Office of Professional Responsibility (OPR) and Inspector General (IG), as well as Congressional committees,” he said.

Since President Donald Trump’s supporters attacked the Capitol, the Hill’s police department has gotten a new chief and two new directors of its intelligence division. And the department staunchly defends its efforts to track and mitigate threats to members of Congress.

Specifically at issue is the way employees in the Capitol Police’s Intelligence and Interagency Coordination Division assess threats related to lawmakers’ meetings and events away from Capitol Hill.

As part of a longstanding practice, members of Congress often share information with Capitol Police and the Sergeant at Arms regarding those gatherings. Lawmakers’ offices typically send over dates, times, locations and expected attendees for events that can range from large fundraisers to small dinners at supporters’ homes.

Last spring, after the attack on the Capitol, Gebhardt said this process was expanded. According to Gebhardt, the analysts were directed to start looking through the social media pages of people attending these events with members of Congress — including, at times, congressional staff.

Gebhardt said his clients grew so worried about the expansion to the department’s intelligence gathering that they filed complaints with a variety of oversight bodies. This is Gebhardt’s first detailed on-the-record discussion of this issue on behalf of Capitol Police employees who worked for the department’s intelligence division on Jan. 6. POLITICO is not publishing the names of the employees, and Gebhardt has previously said his clients have faced retaliation.

In a statement to POLITICO, the Capitol Police executive team defended the work.

“These old accusations continue to be misleading,” the statement said. “The USCP uses the same common sense best practices as other protective agencies to ensure the safety of Members of Congress and the public at a time when threats against lawmakers are higher than ever. An event assessment is only done at the request of the Member’s office or protection detail and are much more limited than a threat investigation. The work is ethical and lawful. Nevertheless, we requested an independent review by the Inspector General back in January.”

POLITICO previously reported on the larger scope of the department’s intelligence collection concerning lawmakers’ events.

After the story published, Capitol Police Chief Thomas Manger revealed in a letter to members of Congress that the department’s inspector general would look into the matter. Manger also used the letter to push back on much of POLITICO’s original reporting, saying that the department’s processes are “legal, necessary, and appropriate.”

Manger added that the intelligence unit’s practices are “strictly limited to gathering basic information about the event that ensures the safety of Members.” Department intelligence analysts, he said, only look for “basic background information” on people attending events with members, including their employers and job titles. In other words, contradicting Gebhardt’s assertions, Manger indicated that they do not check event attendees’ social media pages unless they’re worried those people could pose risks.

The chief, who took over at the department in July, also wrote that Capitol Police “conduct a Google search” to see if attendees’ backgrounds show “any obvious security concern.” And Manger said Capitol Police officials have never “intentionally researched staff” as part of this work.

Gebhardt’s statement on behalf of his whistleblower clients, however, appears at odds with Manger’s account of the department’s work. Gebhardt wrote that intelligence analysts were “directed” to search the social media pages of congressional staff, event attendees and hosts.

Department officials made changes to those policies in spring of 2021, according to Gebhardt. Since then, Capitol Police has brought on a new intelligence director, Ravi Satkalmi. Previously the New York Police Department’s director of intelligence analysis, Satkalmi assumed the job just last month.

Gebhardt said the changes generated significant concerns among analysts in the division. His clients’ worries, he said, included “obtaining [personally identifiable information] without proper predicate, First Amendment concerns, and the misallocation of resources that analysts are tasked to conduct research on event attendees, hosts, staff, and even family members of Congress, instead of conducting analysis to stop the next January 6th.”

As an example, Gebhardt said intelligence division management directed analysts “to conduct internet searches and review social media on a religious leader who was performing a funeral” that a member of Congress attended.

A separate email reviewed for this story confirmed that the intelligence division scrutinized a pastor officiating a funeral, as noted in Gebhardt’s statement. Gebhardt provided no further details on that episode, and Capitol Police officials said they couldn’t weigh in without more information.

Lawmakers have raised questions about the Capitol Police’s expanded scope of intelligence gathering. Those concerns, however, come in the wake of criticism that the department was insufficiently aggressive in monitoring threats to Congress before Jan. 6.

Civil liberties advocates renewed their own First Amendment complaints in recent days about the new allegations regarding Capitol Police.

Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, said in an interview that it is troubling for police to scrutinize the social media accounts of people who aren’t suspected of crimes.

“Unless the police suspect these people of wrongdoing, this type of probing is a serious incursion on freedom of speech, association, and religion,” she said.