2017–2018 Department of Justice metadata seizures

Slate reported in 2013 that the government's interpretation of "metadata" could be broad, and might include message content such as the subject lines of emails. The Justice Department's use of the Espionage Act of 1917 to seek reporter records dramatically increased over the last 2 decades, with the Bush and Obama administrations also relying on the law to pursue leakers. The Obama Justice Department under Eric Holder was sharply criticized for its use of subpoenas to acquire metadata of journalists in an unprecedented crackdown on leaks of classified information to the press. Beginning in 2014, Holder instituted new rules to curtail but not eliminate such practices. Leading up to and following the 2016 United States presidential election, there were widespread press reports that Russia attempted to influence the election so as to favor Donald Trump and oppose Hillary Clinton. Even before his inauguration, President-elect Trump demanded investigations to find out who was leaking information about the Russian activity. After Trump took office as president in 2017, the Justice Department under Attorney General of the United States Jeff Sessions undertook a vigorous investigation into who had leaked information to the press about the Russian interference, and particularly about any contact between Trump associates and Russia. In 2018, she was convicted of "removing classified material from a government facility and mailing it to a news outlet" and given the longest sentence ever imposed for unauthorized release of government information to the media. Sessions continued to push for the FBI to prioritize leak investigations. Sessions vowed that he would confront leaks of classified information - a subject which had greatly angered Trump. Trump had repeatedly called for increased prosecution of leaks. Trump was reportedly enraged for weeks by the phone leaks as undermining his ability to conduct candid foreign policy and internally demanded that fewer people attend his calls. Sessions stated that he would review policies affecting media subpoenas. In June 2018, the White House stopped the practice of publishing public readouts of Trump's calls with world leaders partly in response to the leaks. == Metadata seizure ==

CNN CNN reported in May 2021 that the Trump Justice Department had secretly acquired by court order the phone logs and email metadata of its Pentagon reporter Barbara Starr for the months of June and July 2017, spanning more than 30,000 email records. Prosecutors were seeking email records from a time period when Starr reported on US military options in North Korea that were ready to be presented to Trump, as well as stories on Syria and Afghanistan. G. Zachary Terwilliger, U.S Attorney for the Eastern District of Virginia oversaw the orders and investigation into CNN with the involvement of prosecutors from the DOJ National Security Division. As of July 1, probes are being conducted into whether management knew about these investigations. Head of the DOJ National Security Division, Assistant Attorney General John Demers has denied knowledge of these actions. CNN General Counsel David Vigilante was prohibited under a gag order issued by a federal magistrate judge in the Eastern District of Virginia from sharing any details about the government's efforts with anyone beyond the network's president, top attorneys at CNN's corporate parent and attorneys at an outside law firm. Specifically, Vigilante was forbidden from knowing the contents of the investigation, its subjects, the subject matter of the reporting at issue, the time the investigation opened, and from informing the reporter targeted. The DOJ gave little notice to CNN and made Vigilante subject to several restrictions with the risk of contempt and obstruction of justice for refusing to comply. Vigilante retained Jamie Gorelick, Aaron Zebley, and Paul Wolfson from the law firm Wilmer Cutler Pickering Hale and Dorr. CNN President Jeff Zucker was then debriefed on the orders. CNN filed a motion on September 11, 2020, requesting the judge limit the order. On October 7, 2020, federal Magistrate Theresa Buchanan in Virginia granted the motion and ordered the Justice Department to narrow its search of records related to the relevant account. On October 9, 2020, the DOJ filed a motion to reconsider the court's order, providing a classified affidavit, and Buchanan reversed herself, ordering CNN to comply. On December 16, 2020, CNN had its appeal issued a month earlier heard in district court. In a statement, US District Judge Anthony Trenga said: DOJ obtained the phone logs in 2020, according to a spokesman for the Biden Justice Department. The Biden Justice Department disclosed in August 2021 that Barr approved the seizures in September 2020. The DOJ did not inform Schiff of the investigation involving his aide before the FBI interviewed his aide. When Schiff was made aware of the interview, he with his House counsel, confronted the DOJ, which offered few details. The day before the subpoena, Trump tweeted that Schiff was "one of the biggest liars and leakers in Washington." Apple said it received the subpoena for Intelligence Committee metadata in February 2018, and that it demanded information for 73 phone numbers and 36 email addresses; a source told CNN the subpoena covered data from the inception of the accounts. Apple provided limited information such as metadata and account subscriber information and did not provide any content such as pictures or emails. While Apple says it would have normally informed customers, the department also secured a gag order to prevent Apple from telling the customers their data had been given out. The customers did not know they were being investigated until Apple informed them on May 5, 2021, after the gag order, having been renewed yearly, had expired. iCloud commonly and automatically stores a wide variety of information users generate on their Apple devices, including phone call history, voicemails, emails, text messages and instant messages, as well as photos and documents. Metadata from the inquiry did not implicate anyone associated with the committee, and the inquiry languished. However, when Bill Barr became attorney general in February 2019, he revived the effort, and in February 2020 he called up Craig Carpenito, the United States Attorney for the District of New Jersey, to recommend a strong prosecutor to invigorate the investigations. Carpenito's office lent Osmar Benvenuto, a Democrat, to lead the investigations, and about six others to work on the leak investigation involving Schiff. The New York Times reported some in the Justice Department and those in the New Jersey office saw Barr's approach as politically motivated. Barr was kept regularly informed on the investigations, and he frequently received memos on the progress of the probes. On February 23, 2018, Apple also received and complied with grand jury subpoenas issued in the Eastern District of Virginia relating to the iCloud accounts of White House counsel Don McGahn and his wife. When the Justice Department subpoenaed Apple it was unaware McGahn's records were among those it sought. The New York Times reported there were two events roughly concurrent with the subpoenas. The Mueller investigation of former Trump campaign chairman Paul Manafort was scrutinizing his communications, which might have included McGahn, who was the top Trump campaign lawyer, though CNN reported the subpoenas did not originate from the Mueller investigation. The Times reported in January 2018 that in June 2017 Trump instructed McGahn to have the Justice Department remove Mueller, which McGahn told Trump he would not do, and Trump pressured McGahn to keep the instruction secret as it might have constituted obstruction of justice. == Aftermath ==

After the transition to the Biden administration, the Justice Department continued to pursue news organization investigations and gag orders for several months, following "established procedures". In early June they said that, "consistent with the president's direction", they had discontinued the practice of issuing subpoenas to journalists. The meeting occurred as scheduled, with multiple news media executives in attendance: CNN Washington bureau chief Sam Feist and general counsel David Vigilante on behalf of CNN, publisher A.G. Sulzberger and deputy general counsel David McCraw from The Times, publisher Fred Ryan, executive editor Sally Buzbee and head of legal Jay Kennedy from The Post, and Bruce Brown of RCFP. The meeting was conducted with Garland and 7 other DOJ officials. Speaking on behalf of the news representatives, Brown reiterated the importance of protecting confidential soures. Garland also met with Schiff. The congressional subpoenas had been issued in February 2018, reportedly prior to Demers taking office that same month. Demer's replacement, Matt Olsen, has already been nominated by President Biden, and is awaiting Senate approval as of June 2021. Microsoft's vice president of customer security, Tom Burt, plans to testify before the House Judiciary Committee and criticize the government for its abuse of gag orders in his testimony. Expected remarks include "We are not suggesting that secrecy orders should only be obtained through some impossible standard," and "We simply ask that it be a meaningful one. ... Without legislative reform, abuses will continue to occur -- and they will continue to occur out of sight." Burt will also provide data on the DOJ requests that Microsoft routinely receives. Investigations The day after news broke about the subpoenas involving reporters and congressmembers, Deputy Attorney General Lisa Monaco referred the matter to the DOJ Office of the Inspector General led by Michael E. Horowitz, which announced it would investigate the matter. A statement from the inspector general's office said, "The review will examine the Department's compliance with applicable DOJ policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations. If circumstances warrant, the OIG will consider other issues that may arise during the review." Democratic congressional leaders also vowed to investigate the department's efforts to seize the communications records of congressmembers and their staff and family members. House Judiciary Chairman Jerry Nadler on June 14 announced his committee would formally open an investigation into the DOJ's surveillance of congressmen, journalists and others. Sessions and Barr, and their deputy Rosenstein, have claimed they knew nothing about any subpoenas involving legislators. It is extraordinary to subpoena a White House counsel's records. CNN noted that it was strange for the White House counsel for the president to be subject of a subpoena from within the president's own Justice Department. == Reactions ==

Organizations CNN Pentagon Correspondent Barbara Starr in an op-ed called the Trump DOJ's seizure of her communications data "a sheer abuse of power" against the free press that should be protected by the First Amendment, and called for the codification of new protections for reporters. Dean Baquet, the executive editor of The New York Times, said in a statement that "[s]eizing the phone records of journalists profoundly undermines press freedom," and that "[i]t threatens to silence the sources we depend on to provide the public with essential information about what the government is doing." Apple suggested the same subpoenas for data may have gone to other phone companies and tech corporations, though no other company aside from Microsoft has publicly acknowledged being served with such subpoenas. Adam Goldman, one of the Times reporters who wrote the article about subpoenas of committee members, noted in an interview that because Sessions was recused, the decision to pursue subpoenas would presumably have fallen to deputy attorney general Rod Rosenstein. Both Sessions and Rosenstein were not aware of the request for information related to McGahn and his wife. White House Press Secretary Jen Psaki in a June 5 statement attempted to distance the White House from the DOJ's continued effort to seize data from NYT reporters, saying "As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night (June 4)." She reiterated the president's stance that the DOJ practice would not continue moving forward. Anthony Coley, a Justice Department spokesman, stated on June 5 that "Going forward, consistent with the President's direction, this Department of Justice — in a change to its longstanding practice — will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs." He added that "on multiple occasions in recent months," the Biden-era department had moved to delay enforcement of the gag order and finally "voluntarily moved to withdraw the order before any records were produced." He added, "The department strongly values a free and independent press, and is committed to upholding the First Amendment." This includes no longer using compulsory legal processes when seizing data from news reporters. It also bans forcing reporters to disclosing their sources or notes. News organisations commended the action and called for such regulations to be codified. Congress House On June 10, House Speaker Nancy Pelosi called the development "harrowing" and "another egregious assault on our democracy waged by the former president." She supported Schiff's call for an investigation into the data seizure and other acts of the "weaponization of law enforcement" by Trump. Rep. Adam Schiff said he was shocked but not surprised at the reports. He said in a statement, "The politicization of the Department and the attacks on the rule of law are among the most dangerous assaults on our democracy carried out by the former President," adding that the Inspector General should investigate the case. He continued his criticism in a Washington Post op-ed. Rep. Eric Swalwell maintained that he never leaked classified information and derided the Trump DOJ for seizing lawmakers' data. "This is about everyday Americans who don't want to see their government weaponize law enforcement against them because of their political beliefs," Swalwell said, calling Trump the "biggest brother we've ever seen," referring to Big Brother in George Orwell's Nineteen Eighty-Four. In a June 14 statement announcing a formal investigation, he stated "It remains possible that these cases ... are isolated incidents. Even if these reports are completely unrelated, they raise serious constitutional and separation of power concerns," and that "Congress must make it extraordinarily difficult, if not impossible, for the Department to spy on the Congress or the news media. We should make it hard for prosecutors to hide behind secret gag orders for years at a time. We cannot rely on the Department alone to make these changes." Senate Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chair Dick Durbin (D-Ill.) called for Barr, Sessions, Demers, and former acting Attorney General Matthew Whitaker to appear before the Judiciary Committee for relevant questioning. Schumer and Durbin in a joint statement declared that "[t]his appalling politicization of the Department of Justice by Donald Trump and his sycophants must be investigated immediately by both the DOJ Inspector General and Congress," and that the Judiciary Committee "will vigorously investigate this abuse of power." Senate Minority Whip John Thune disagreed with McConnell and suggested that it warranted further review and investigation. He questioned how the DOJ acquired data from members of Congress and suggested the Senate committees could review the matter. Sen. Chuck Grassley of Iowa, the Judiciary Committee's top Republican, indicated that he opposes a congressional probe. In a statement, Grassley stated that "[i]nvestigations into members of Congress and staff are nothing new, especially for classified leaks," and that "[t]he Justice Department has specific procedures for such sensitive investigations, and the inspector general is already working to determine if they were followed." Sen. John Cornyn, a Judiciary Committee member, sided with McConnell, stating that "[i]t's a court proceeding and the judge is going to decide if it is appropriate or not," and so "there's not much of a role for us to play." Sen. Josh Hawley, a Judiciary Committee member, stated his concerns with the appropriateness of the DOJ's subpoenas in "very rare circumstances," but declined to comment further, stating he did not know enough to comment further. Sen. Thom Tillis, a Judiciary Committee member, said it was "an interesting question" when asked if Barr and Sessions should be subpoenaed, suggesting it was a decision to be made between the chair on the ranking member, and that he would to defer to them bringing before the committee. Sen. Marsha Blackburn declined to respond on the matter, and Sen. Ben Sasse's office did not respond for comment. ==References==