WASHINGTON – The Justice Department will tighten its rules on when law enforcement officers seize information about members of Congress and their aides, Attorney General Merrick B. Garland said Monday amid a backlash against disclosure of a 2018 subpoena that contained data from Apple accounts by democratic legislators and employees.
Later in the day, Mr. Garland also met with leaders from The New York Times, CNN and The Washington Post after it was revealed that the Trump Department of Justice had secretly seized phone records from reporters at every branch looking for their sources. President Biden and Mr. Garland have stated that prosecutors will no longer be allowed to use this tactic.
The two events underscored how recent revelations, showing prosecutors’ power to secretly seize records from phone and tech companies for leak investigations, has become a major political headache for the Biden-era Justice Department, albeit with many questions about context consist.
David McCraw, a Times newsroom attorney who attended the meeting with its editor, A.G. Sulzberger, attending, described the discussion – about limiting the ability of leak hunters to search for reporter data – as positive. Under an agreement, news managers were allowed to disclose what they said, but Mr. Garland’s replies were not public.
“We made our case for why we needed accountability for what happened,” said McCraw. “We also pushed the idea that these changes that the President and the Attorney General spoke of should be institutionalized. What we heard was very encouraging. “
The meeting came hours after Mr. Garland raised the political turmoil over the subpoena for Congressional briefing reported by the Times last week. He said he had asked his deputy, Lisa O. Monaco, to review and tighten the department’s “Preservation of Legislative Records” guidelines, noting that she was “already working to uncover potentially problematic matters deserve a high level review ”.
Mr. Garland added: “In line with our commitment to the rule of law, we must ensure that the separation of powers is given full weight in the future.”
That announcement came when John C. Demers, the Trump administration official who heads the Department of Justice’s national security division overseeing the leak investigations, told his staff that he would resign late next week.
On Sunday, Democratic lawmakers had asked Mr. Demers to testify on the subpoena, which contained Congressional information, along with former Assistant Attorney General Rod J. Rosenstein and former Attorney General Jeff Sessions and William P. Barr.
But on Monday, Senator Mitch McConnell of Kentucky, the minority leader, condemned the calls, saying that an investigation by the independent Justice Department Inspector-General would be sufficient. In calling for a Congressional investigation, he said, top Democrats “gave in to the urge to pick on the scab of politically motivated investigations.”
“The Department of Justice has the power to investigate criminal conduct by members of Congress and their staff – this type of investigation is bound by strict procedural rules,” said McConnell. “The department’s inspector general is fully equipped to determine if these procedures have been followed. I am confident that the existing investigation will bring the truth to light. “
He also said it “was particularly disappointing that our colleagues attacked Bill Barr over investigative decisions made when he was not there”.
The grand jury subpoena, which intercepted congressional information, was dated February 2018, when Mr. Sessions and Mr. Rosenstein were still the top two officials in the Justice Department.
Still, after Barr was sworn in the following year, the Times reported that he brought in a trusted prosecutor with little relevant experience to reanimate several leak cases, including the one involving Democrats in Congress and their staff.
Eventually it was closed without charge.
Illinois Senator Richard J. Durbin, the No. 2 Democrat who helped call the former attorneys general as witnesses, rejected Mr. McConnell’s suggestion that nothing was wrong and asked, “How should he know?”
Mr. Durbin, who is also 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 related records and asking questions about their basis and purpose.
The subpoena appears to have been part of a leak investigation into a Democratic aide on the House of Representatives Intelligence Committee. The Times previously reported that it listed 109 phone numbers and email addresses and looked up account information associated with those numbers.
Two lawmakers – Rep. Adam B. Schiff and Eric Swalwell, both Democrats from California – were among those whose account information Apple disclosed, along with aides and a relative of Mr. Schiff.
Broad subpoena appears to have been an example of a common technique investigators use in obtaining a target’s communications records. By submitting electronic communications providers for account information associated with those phone numbers or email addresses, they can identify the people with whom the target has interacted.
For example, many people own a smartphone that uses either Apple or Google’s operating system and register their phone numbers with one of these companies when they set up their devices. These accounts can also include their names, addresses, email addresses, details about the phone and computer hardware they used to access the account, and sometimes credit card numbers.
While the controversies over secret data seizures on reporters and on lawmakers and their staff from the Trump era have partially merged, there is one important difference.
The phone data seized through reporters at The Times, The Post, and CNN was focused on some type of metadata – call logs – that reveal who people were talking to. The Justice Department also fought a related lawsuit over an injunction it received for transcripts of reporters’ emails – which may also reveal social contacts – spilling over into the Biden era and gag orders against executives at The Times and CNN contained.
On the other hand, there is no indication that the summons to Apple could have provided the investigators with such metadata that would enable a systematic look at the legislature’s contacts with other people.
According to law enforcement agencies, prosecutors cannot use grand jury summons to obtain email logs. Instead, they get injunctions if they want to confiscate the senders and recipients of emails and other types of electronic messages in the information log.
Apple, which is not a telephone company and does not keep traditional call logs, stated in response to the grand jury that it only “shared account subscriber information” and “did not post any content such as emails or pictures”.
The law treats telephone logs differently. Prosecutors can seize them with a subpoena from the grand jury without the involvement of a judge. But Apple is more accommodating than some other companies when it reveals to its customers when it has handed over its data to the government – at least when there is no more gag, as was the case for years when the grand jury was summoned. It is not clear whether similar subpoenas were made to telephone providers.
Over the weekend, The Times reported that Apple last month informed Donald F. McGahn II, former White House attorney for President Donald J. Trump, that it was secretly providing information about its account in response to a grand jury subpoena Prosecutors passed on gag order in February 2018. It remains unclear what investigations led to this subpoena and whether Mr McGahn was one of many people on a list of people who were in contact with an investigated person and who the investigators wanted to identify.
The House of Representatives Judiciary Committee will also conduct its own regulatory investigation, its chairman, Jerrold Nadler, Democrat of New York, said on Monday. He said that even if the cases – involving lawmakers, reporters and Mr. McGahn – turn out to be independent and isolated, “they raise serious concerns about the constitution and the separation of powers.”
He added, “Congress must make it extremely difficult, if not impossible, for the department to spy on Congress or the news media. We should make it difficult for prosecutors to hide behind secret gag orders for years. We cannot rely on the department alone to make these changes. “
Emily Cochrane and Adam Goldmann Reporting contributed.