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Justice Dept. Will Toughen Rules for Seizing Lawmakers’ Data, Garland Says

WASHINGTON — The Justice Department will tighten its rules for when law enforcement officials may seize information about members of Congress and their aides, Attorney General Merrick B. Garland said on Monday amid a backlash to the disclosure of a 2018 subpoena that swept in data from the Apple accounts of Democratic lawmakers and staff.

Merrick Garland in a suit and tie: Attorney General Merrick B. Garland has said that a new Justice Department policy on leak investigations would be “the most protective of journalists’ ability to do their jobs in history.”

Merrick Garland in a suit and tie: Attorney General Merrick B. Garland has said that a new Justice Department policy on leak investigations would be “the most protective of journalists’ ability to do their jobs in history.”


© Tom Brenner for The New York Times
Attorney General Merrick B. Garland has said {that a} new Justice Department policy on leak investigations would be “the most protective of journalists’ ability to do their jobs in history.”

Later in the day, Mr. Garland also met with leaders of The New York Times, CNN and The Washington Post after the disclosure that the Trump Justice Department had secretly seized phone records of reporters at each outlet in search of their sources. President Biden and Mr. Garland have said that prosecutors will no longer be permitted to use that tactic.

The two events underscored how recent revelations displaying the power of prosecutors to secretly seize records from phone and technology companies for leak investigations have become a major political headache for the Biden-era Justice Department, even as many questions remain about the context.

 

David McCraw, a Times newsroom lawyer who attended the meeting with its publisher, A.G. Sulzberger, portrayed the discussion — about limiting the flexibility of leak hunters to go after reporters’ data — as positive. Under an agreement, news executives were permitted to disclose what they said, but Mr. Garland’s responses were off the record.

“In today’s meeting, we once again sought a full accounting of what happened and requested that the Department of Justice codify that it will no longer seize journalists’ records during leak investigations,” Mr. Sulzburger said in a statement. “We were encouraged by Attorney General Garland’s statements, but we will continue to push until our concerns are addressed.”

The meeting came hours after Mr. Garland had addressed the political uproar over the subpoena for congressional info, which The Times reported last week. He said he had asked his deputy, Lisa O. Monaco, to review and toughen the department’s existing policies “for obtaining records of the legislative branch,” noting that she was “already working on surfacing potentially problematic matters deserving high-level review.”

Mr. Garland added: “Consistent with our commitment to the rule of law, we must ensure that full weight is accorded to separation-of-powers concerns moving forward.”

That announcement came as John C. Demers, the Trump administration official who leads the Justice Department’s national security division, which oversees leak investigations, told his staff that he would step down at the end of next week.

On Sunday, Democratic lawmakers had called for Mr. Demers to testify about the subpoena that swept in congressional information, along with the former deputy attorney general Rod J. Rosenstein and the former attorneys general Jeff Sessions and William P. Barr.

But on Monday, Senator Mitch McConnell of Kentucky, the minority leader, denounced those calls, saying that an investigation by the Justice Department’s independent inspector general was sufficient. By calling for a congressional inquiry, he said, top Democrats “gave in to the urge to pick at the scab of politically motivated investigations.”

“The Department of Justice is empowered to investigate criminal conduct by members of Congress and their staff — necessarily, this sort of investigation is subject to strict procedural protections,” Mr. McConnell said. “The department’s inspector general is fully equipped to determine whether these procedures were followed. I’m confident that the present inquiry will uncover the truth.”

He also said that it was “particularly disappointing that our colleagues are attacking Bill Barr over investigative decisions that occurred when he wasn’t there yet.”

The grand jury subpoena that swept up congressional information was dated February 2018, when Mr. Sessions and Mr. Rosenstein were still the top two officials in the Justice Department.

Still, after Mr. Barr was sworn in the following year, The Times has reported, he brought in a trusted prosecutor with little relevant experience to help reinvigorate several leak cases, including the one that involved congressional Democrats and their staff.

Eventually, it was closed without charges.

Senator Richard J. Durbin of Illinois, the No. 2 Democrat who has supported calling the former attorneys general to testify, pushed back at Mr. McConnell’s suggestion that there was nothing amiss, asking, “How would he know that?”

Mr. Durbin, who is also the chairman of the Senate Judiciary Committee, sent a letter signed by the other 10 Democrats on that panel to Mr. Garland on Monday asking for a copy of the subpoena and internal emails and other records related to it, and posing questions about its basis and purpose.

The subpoena appears to have been part of a leak investigation that centered on a Democratic aide on the House Intelligence Committee. The Times has previously reported that it listed 109 phone numbers and email addresses and sought account data linked to those numbers.

Two lawmakers — Representatives Adam B. Schiff and Eric Swalwell, both Democrats of California — were among those whose account information Apple turned over, along with aides and a relative of Mr. Schiff’s.

The broad subpoena appears to have been an example of a common technique investigators use after they get hold of the communications records of a target. By subpoenaing electronic communications providers for any account information linked to those phone numbers or email addresses, they can identify the people with whom the target interacted.

For example, many people own a smartphone that uses either Apple’s or Google’s operating systems and register their phone numbers with one of those companies when setting up their devices. Those accounts may also have their names, addresses, email addresses, data about the phone and computer {hardware} they used to access the account, and sometimes credit card numbers.

While the controversies over secret Trump-era seizures of data about reporters and about lawmakers and their staff have partly merged, there is an important difference.

The phone data seized about reporters at The Times, The Post and CNN centered on a type of metadata — calling logs — that reveals whom folks have spoken with. The Justice Department also carried out a related legal fight over a court order it obtained for logs of the reporters’ emails — which can also reveal social contacts — that spilled into the Biden era and included gag orders imposed on executives at The Times and CNN.

By contrast, there is no sign that the subpoena to Apple could have provided investigators with the type of metadata that would offer a systematic look at the lawmakers’ contacts with other people.

According to law enforcement officials, prosecutors cannot use a grand jury subpoena to obtain email logs. Instead, they obtain court orders if they want to seize the information logging senders and recipients of emails and other types of electronic messages.

Apple, which is not a phone company and does not generate traditional calling logs, has stated it turned over solely “account subscriber information” in response to the grand jury and that it “did not provide any content such as emails or pictures.”

The law treats phone call logs differently. Prosecutors can seize them using a grand jury subpoena, without a judge’s involvement. But Apple is more forthcoming than some other companies in disclosing to customers when it has turned over their data to the government — at least when there is no longer a gag order, as there was for years about the grand jury subpoena. It is not clear whether any similar subpoenas went to phone providers.

Over the weekend, The Times reported that Apple final month told Donald F. McGahn II, the former White House counsel to President Donald J. Trump, that it had secretly turned over to prosecutors information about his account in response to a grand jury subpoena and gag order in February 2018. It remains unclear what investigation generated that subpoena and whether Mr. McGahn was one of many people on a list of those who had been in contact with a person under scrutiny and whom investigators were seeking to identify.

The House Judiciary Committee will also conduct its own oversight inquiry, its chairman, Representative Jerrold Nadler, Democrat of New York, announced on Monday. He said that even if the cases — involving lawmakers, reporters and Mr. McGahn — turn out to be unrelated and isolated, “they raise serious constitutional and separation-of-powers concerns.”

He added: “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.”

Emily Cochrane and Adam Goldman contributed reporting.

 

 

 

 

 

Source: Justice Dept. Will Toughen Rules for Seizing Lawmakers’ Data, Garland Says

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