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Justice Department to Tighten Rules on Seizing Congress Data

June 15, 2021by Michael Balsamo, Mary Clare Jalonich and Michael Liedtke, Associated Press
U.S. Attorney General Merrick Garland speaks about voting rights at the Justice Department in Washington, on Friday, June 11, 2021. (Tom Brenner/The New York Times via AP, Pool)

WASHINGTON (AP) — The Justice Department will tighten its rules around obtaining records from members of Congress, Attorney General Merrick Garland said, amid revelations the department under former President Donald Trump had secretly seized records from Democrats and members of the media. 

“Consistent with our commitment to the rule of law,” Garland said Monday in a statement, “we must ensure that full weight is accorded to separation-of-powers concerns moving forward.”

Garland’s statement came as a Justice Department official said the top national security official, John Demers, planned to leave by the end of next week. Demers, who was sworn in a few weeks after the subpoena for the Democrats’ records, is one of the few Trump appointees who has remained in the Biden administration.

The Justice Department is struggling to contain the fallout over revelations that it had confiscated phone data from House Democrats and reporters as part of an aggressive investigation into leaks. The disclosure is also forcing Biden administration officials to wade back into a fight with their predecessors — something they’ve wished to avoid. 

News outlets reported last week that the Justice Department had secretly subpoenaed Cupertino, California-based Apple Inc. in 2018 for metadata from two Democratic members of the House Intelligence Committee — California Rep. Adam Schiff and California Rep. Eric Swalwell — as their committee was investigating Trump’s ties to Russia. Schiff, at the time, was the top Democrat on the panel, which was led by Republicans.

Now the House Intelligence Committee Chair, Schiff said Monday that he had spoken with Garland, who had given his commitment to an independent investigation by the inspector general. Schiff said he had “every confidence” that Garland “will also do the kind of top-to-bottom review of the degree to which the department was politicized during the previous administration and take corrective steps.”

The intelligence panel initially said 12 people connected to the committee — including aides, former aides and family members — had been swept up, but more have since been uncovered, according to a person familiar with the matter who also was not authorized to discuss it publicly and spoke to the AP on condition of anonymity.

Some people might not know they were targeted because the Apple notification was by email and showed up in the spam filters of some of those who were contacted, the person said.

House Judiciary Committee Chair Rep. Jerry Nadler, D-N.Y., announced an investigation into the subpoenas on members of Congress and journalists. Senate Judiciary Committee Chair Sen. Dick Durbin, D-Ill., demanded a copy of the subpoena and other records about the decision to obtain the order.

Meanwhile, Senate Minority Leader Mitch McConnell, R-Ky., lambasted a demand by Democrats that former attorneys general William Barr and Jeff Sessions testify before a committee on the subpoenas, saying his Democratic colleagues had given into the “urge to pick at the scab of politically-motivated investigations.” He defended Barr, saying the move was a “witch hunt in the making.”

“There is no need for a partisan circus here in Congress,” he said. 

The subpoena, issued Feb. 6, 2018, requested information on 73 phone numbers and 36 email addresses, Apple said. It also included a nondisclosure order that prohibited the company from notifying any of the people, and it was renewed three times, the company said in a statement.

Apple said that it couldn’t challenge the warrants because it had so little information available and that “it would have been virtually impossible for Apple to understand the intent of the desired information without digging through users’ accounts.” 

Although Apple says it contests legal requests that it believes are unfounded, the company challenged or rejected just 7% of the U.S. demands it received during the 2018 period when it received the subpoena for the information about Schiff and Swalwell. Apple was even less combative during the first half of last year, challenging just 4% of the U.S. legal requests.

Apple has been turning over some customer data in 80% to 90% of the legal requests it has received in the U.S. in recent years, though the information often excludes the content of text, email or photos.

Like other major technology companies, Apple has been dealing with a steadily escalating torrent of legal requests for account and device information from around the world as its products and services have become more deeply ingrained in people’s lives.

During the first half of last year, for instance, U.S. law enforcement agencies sought information on 18,609 Apple accounts — nearly seven times the number of accounts requested during the same time in 2015.

The demands are becoming more broad, too. During the first half of 2018, when Apple received the subpoena affecting Schiff and Swalwell, the 2,397 U.S. legal requests that Apple received covered an average of seven accounts, according to the company’s disclosures. That was up from an average of roughly three accounts per request during the first half of 2015.

The department’s inspector general has launched a probe into the matter after a request from Deputy Attorney General Lisa Monaco. Inspector General Michael Horowitz said he would examine whether the data subpoenaed by the Justice Department and turned over by Apple followed department policy and “whether any such uses, or the investigations, were based upon improper considerations.”

In addition, Monaco has been separately tasked with “surfacing problematic matters deserving high level review,” Garland said.

Garland emphasized in his statement Monday that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”

Demers has been in charge of the department’s national security division since late February 2018, and his division has played a role in each of the leak investigations. He leaves as questions swirl over his potential involvement in the effort. 

He had planned for weeks to leave the department by the end of June, a second person familiar with the matter said. The two could not discuss the matter publicly and spoke to The Associated Press on the condition of anonymity.

He will be temporarily replaced by Mark Lesko, the acting U.S. attorney in the Eastern District of New York, the official said, until President Joe Biden’s official pick, Matthew Olsen, is approved by the Senate.

Olsen is an Uber executive with experience in the Justice Department. He has served as director of the National Counterterrorism Center and as general counsel for the National Security Agency. Demers had remained in place while Olsen awaits a confirmation hearing.

___

Liedtke reported from San Francisco. Associated Press writer Colleen Long in Washington contributed to this report. 

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