Five months after the end of the Trump administration, details are emerging about the Department of Justice’s unprecedented efforts to target the former president’s perceived enemies. Thanks to the recent expiration and legal defeat of judicial gag orders, it has come to light that the Trump DOJ, in an apparent attempt to identify government officials who may have been leaking damaging or embarrassing information to the press, secretly seized phone and email records from the accounts of multiple journalists, congressional Democrats, and even one of Trump’s top lawyers.
Below is what we know about this still-unfolding scandal, the people and data targeted by the Justice Department’s secret subpoenas, and the potential consequences.
The DOJ secretly seized data from at least two members of Congress.
In February 2018, the Department of Justice subpoenaed Apple for data linked to 73 phone numbers and 36 email addresses belonging to Democrats on the House Intelligence Committee, their staff, and their family members. Federal prosecutors working under then–Attorney General Jeff Sessions supposedly sought the records as part of their effort to determine who was leaking information to the press regarding connections between Trump officials and Russia.
House Intelligence Committee chairman Adam Schiff and fellow committee member Eric Swalwell, both of whom were fierce critics of former president Trump, have confirmed that their accounts were among those targeted. Account data belonging to the congressmen’s aides and family members was also seized, reportedly including an account that belonged to a minor.
The subpoena, which was approved by a federal grand jury, included a judicial gag order that prevented Apple from notifying the account holders of the data seizures until this May, when the gag order — which had been renewed by the DOJ three times — finally expired. Apple said it did not know who the targeted account holders were when it received and complied with the subpoena.
On June 11, Microsoft confirmed that it had received a similar subpoena from the Justice Department in 2017 regarding a personal email account, but was prevented from informing the account holder by a gag order for two years. Once the order expired, Microsoft alerted the user and learned they were a congressional staffer.
It is not yet clear if other members of Congress may have also been targeted in the dragnet, or what other companies the Justice Department may have sought similar data from.
Has the DOJ ever seized data from members of Congress before?
Yes, but typically only in corruption cases. Doing so for a leak investigation is unprecedented.
Journalists who reported on national security were also targeted.
During its leak hunt, the Trump Justice Department sought or seized data from phone and email accounts belonging to journalists working at multiple news organizations, including:
Four journalists at the New York Times
The Trump DOJ secretly obtained months of 2017 phone records of four Times reporters as part of an apparent effort to target former FBI director James Comey. Per the Times:
The department informed The Times that law enforcement officials had seized phone records from Jan. 14 to April 30, 2017, for four Times reporters: Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt. The government also secured a court order to seize logs — but not contents — of their emails, it said, but “no records were obtained.” The Justice Department did not say which article was being investigated. But the lineup of reporters and the timing suggested that the leak investigation related to classified information reported in an April 22, 2017, article the four reporters wrote about how James B. Comey, then the F.B.I. director, handled politically charged investigations during the 2016 presidential election.
Google, which is the Times’ corporate email provider, fought a gag order regarding the subpoena it received in 2020 for email data of the four reporters.
Three journalists at the Washington Post
The Trump DOJ also secretly obtained three and a half months of phone records from three Washington Post journalists, Ellen Nakashima, Greg Miller, and Adam Entous, who had all reported on Russia’s role in the 2016 U.S. election. The data the Justice Department sought was from April 15 to July 31, 2017. It also sought but failed to obtain email records from the Post journalists from that period. The phone records the DOJ did obtain only included what calls were made to and from the targeted phone lines and how long the calls lasted.
The Justice Department informed [Starr in a May 13 letter] that prosecutors had obtained her phone and email records covering two months, between June 1, 2017 to July 31, 2017. The letter listed phone numbers for Starr’s Pentagon extension, the CNN Pentagon booth phone number and her home and cell phones, as well as Starr’s work and personal email accounts. It is unclear when the investigation was opened, whether it happened under Attorney General Jeff Sessions or Attorney General William Barr, and what the Trump administration was looking for in Starr’s records. …
In July 2020, the DOJ also sought, via a secret order from a federal magistrate judge, tens of thousands of Starr’s email logs kept on CNN’s servers. CNN waged a six-month legal battle against the demand, but thanks to a gag order, CNN’s lawyers and leaders were unable to speak out about the fight until recently. The DOJ continued to fight for access to the records through the final days of the Trump administration, and the legal battle wasn’t resolved until January 26. In its report on the fight, CNN notes that while legal sparring between the Justice Department and media organizations over reporters’ records is not uncommon, “What stands apart [in this case] is the total secrecy that surrounded the order, the months-long court proceeding and the Trump administration’s unwillingness to negotiate.”
And former Trump counsel Donald McGahn’s data was seized.
According to the New York Times, in February 2018, the Trump Justice Department also secretly obtained data from Apple for accounts belonging to then–White House counsel Don McGahn and his wife. The subject of the investigation the subpoena is related to is not clear, but it may have also been part of a leak hunt: The data was sought two weeks after the Times reported that Trump administration sources had claimed Trump had ordered McGahn to fire special counsel Robert Mueller, but that McGahn refused.
Who is responsible?
Trump’s first attorney general, Jeff Sessions, got the administration’s big leak hunt started in 2017, following news reports linking the Trump team with Russia, according to the New York Times. That eventually led DOJ prosecutors to seek the data of people associated with the House Intelligence Committee, but as the Times explains:
Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.
But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.
The Times adds that despite pushback from other DOJ officials on the usefulness of the leak probes,
Mr. Barr directed prosecutors to continue investigating, contending that the Justice Department’s National Security Division had allowed the cases to languish, according to three people briefed on the cases. Some cases had nothing to do with leaks about Mr. Trump and involved sensitive national security information, one of the people said. But Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.
In a recent interview with Politico, Barr tried to distance himself from the leak-hunt tactics and claimed he was “not aware of any congressman’s records being sought in a leak case.”
Will there be any consequences?
Not surprisingly, the secret subpoenas have prompted outrage from the White House, Democratic lawmakers, media organizations, and First Amendment advocates. The Justice Department, now run by the Biden administration, has been in damage-control mode — announcing policy changes aimed at avoiding similar-seeming abuses of power in the future, and Attorney General Merrick Garland met with numerous media executives on June 14 to discuss the issue with them in person.
Here’s how the Biden administration and lawmakers have responded thus far:
The DOJ inspector general’s office has launched an investigation.
The watchdog’s probe will examine the Justice Department’s “compliance with applicable DOJ policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations,” as well as “consider other issues that may arise during the review,” the inspector general’s office said on June 11.
The DOJ says it will no longer seize reporters’ records as a part of leak investigations.
The Justice Department announced the new policy on June 5, less than two weeks after President Biden vowed that he would not allow the DOJ to seize journalists’ phone and email records. He called the legal tactic, which has been used by both Democratic and Republican administrations in the past, “simply, simply wrong.”
Garland says the DOJ will further restrict when law enforcement officials can seize the data of members of Congress and their staff.
On June 14, the attorney general announced that he had asked deputy attorney general Lisa Monaco to review and tighten the department’s policies for “obtaining records of the legislative branch.” Garland also insisted that “we must ensure that full weight is accorded to separation-of-powers concerns moving forward.”
House and Senate Democrats say they will investigate the data seizures, too.
House Intelligence Committee chair Jerry Nadler announced on June 14 that the committee would conduct its own investigation, citing the possibility that the Trump administration’s DOJ “used criminal investigations as a pretext to spy on President Trump’s perceived political enemies.” Senate Democrats have also vowed to investigate the matter and are calling, along with House Speaker Nancy Pelosi, for Trump’s attorney generals, William Barr and Jeff Sessions, to testify before Congress regarding their knowledge of the subpoenas. (Senate Republicans are already trying to shoot down that idea, however.)
The DOJ’s top national security official is resigning, but not over the leak-hunt fall out.
John Demers, who has run the Department of Justice’s national security division since 2018, is stepping down this month. While Demers, who was appointed by Trump, was likely aware of the newly disclosed data seizures and is one of the Justice Department officials whom Democratic lawmakers are now calling on to testify before Congress about the investigation, his departure is reportedly not linked to the scandal. He had apparently been expected to leave around this time, and had only stayed in his role at the request of Biden-appointed officials at the DOJ.
Did the Trump administration actually identify any leakers as a result of these subpoenas?
Apparently not. Thus far, there is no evidence that any of these newly revealed efforts resulted in the Justice Department identifying anyone who was leaking information to the press.