Bill Barr Got Some Splainin' To Do About All These Wire Tapps!
Attorney General Merrick Garland will meet today with representatives from the New York Times, CNN, and the Washington Post to explain how their reporters wound up having their phone and email records swept up via secret subpoena in an apparent attempt by the White House to root out leakers. It promises to be an unpleasant conversation, but not nearly as unpleasant as the grilling the AG will face when Congress eventually gets to ask how Democratic Reps. Adam Schiff and Eric Swalwell and 71 staffers and members of their families wound up under state surveillance.
Not to put too fine a point on it, but this is some crazy Nixon shit. Or maybe even worse, which is probably why Jeff Sessions, Rod Rosenstein, and Bill Barr all raced to the nearest reporter to deny knowing anything about it.
"What the administration did, the Justice Department, the leadership of the former President, goes even beyond Richard Nixon. Richard Nixon had an enemies list. This is about undermining the rule of law," House Speaker Nancy Pelosi told CNN's Dana Bash.
Leave aside for the moment whether anyone should believe that sitting members of Congress were surveilled without sign-off at the highest levels of the Justice Department. That all three of these guys felt the need to run, not walk, to get out in front of this story, when they've consistently asserted executive privilege over other internal deliberations at DOJ, is a pretty good indication they know it's really bad.
Not that we needed further proof. If DOJ took as a given that the universe of possible leakers or leak-ees on the House Intelligence Committee included only Democrats, then it's basically prima facie evidence they engaged in a politically motivated witch hunt. Or WITCH HUNT, as the wingers like to scream. Particularly since one Republican on that committee had a widely reported track record of receiving classified data from the White House that he later made public. And it cannot be a coincidence Trump's favorite media targets were the ones targeted by his own law enforcement apparatus.
But this weekend a new wrinkle in the story emerged when the Times reported that DOJ also obtained a secret subpoena for White House Counsel Don McGahn's phone logs back in 2018. McGahn's subpoena was issued by a grand jury in the Eastern District of Virginia, the same jurisdiction that housed part of the Mueller prosecution of Paul Manafort. The article notes that "It is not clear what F.B.I. agents were investigating, whether Mr. McGahn was their specific focus or whether he was swept up in a larger net because he had communicated with someone who was under scrutiny."
What is clear, though, is that it was standard operating procedure for DOJ to engage in secret TAPPS of media and political targets throughout the Trump administration, with documented initial subpoenas between 2017 and 2020, and multiple annual renewals of the gag order spanning the tenures of Sessions, Barr, and Matthew "Big Dick Toilet" Whitaker. This is a sharp break with prior practice, and it frankly beggars belief that it was done without the knowledge of anyone at the White House, where Trump screeched about leakers on Twitter on the daily.
CNN's Executive Vice President and General Counsel David Vigilante describes receiving an order from a federal magistrate judge in EDVA demanding information on reporter Barbara Starr's emails. Vigilante doesn't mention if a grand jury was involved, but does say he was threatened with obstruction charges if he told anyone besides his legal team about the demand to hand over data stored on CNN's servers. CNN fought the subpoena and managed to get a US district judge to narrow the scope.
And Apple and Microsoft probably would have had a similar result if the companies had stuck up for their own customers the way Twitter did when DOJ tried to unmask one of the Devin Nunes parody accounts. But they didn't.
"In this case, the subpoena, which was issued by a federal grand jury and included a nondisclosure order signed by a federal magistrate judge, provided no information on the nature of the investigation and it would have been virtually impossible for Apple to understand the intent of the desired information without digging through users' accounts," Apple said last week of the subpoena signed by a federal magistrate judge in DC on February 6, 2018. "Consistent with the request, Apple limited the information it provided to account subscriber information and did not provide any content such as emails or pictures."
In Apple's telling, it had no idea who Adam Schiff and Eric Swalwell were and could not have figured that out "without digging through users' accounts." Which is about as credible as Sessions, Barr, and Rosenstein saying they didn't know about the subpoenas in the first place.
Microsoft put out a similarly nonsensical statement about its own compliance with a request for data on an account held by a congressional staffer.
"In 2017 Microsoft received a subpoena related to a personal email account," the statement said. "As we've said before, we believe customers have a constitutional right to know when the government requests their email or documents, and we have a right to tell them. In this case, we were prevented from notifying the customer for more than two years because of a gag order. As soon as the gag order expired, we notified the customer who told us they were a congressional staffer. We then provided a briefing to the representative's staff following that notice. We will continue to aggressively seek reform that imposes reasonable limits on government secrecy in cases like this."
And by "continue," presumably the company means it will start fighting the government, since it appears to have done exactly nothing for four straight years as the government sought and obtained three renewals of the gag order. How shitty is that Bing search engine that Microsoft couldn't even plug in the staffer's name and find his or her LinkedIn page?
In summary and in conclusion, this is fucking crazy. Trump's DOJ was wilding out and trampling the First and Fourth Amendments of reporters and Congress, and the tech companies did fuck all to stop it. And speaking of tech companies, seems like a big one is thusfar missing from this conversation.
What gives, Zuck? Did you hand over the deets on those DMs, or what? We are just asking questions.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.