Justice Dept. Watchdog to Investigate Seizure of Democrats’ Data

Democrats denounced the Trump administration’s seizure of lawmakers’ data as an abuse of power and called on Republicans to back the congressional inquiry.


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WASHINGTON — The Justice Department’s independent inspector general opened an investigation on Friday into the decision by federal prosecutors to secretly seize the data of House Democrats and reporters as investigators hunted down who was leaking classified information early in the Trump administration.

At the same time, top Senate Democrats demanded that the former attorneys general Jeff Sessions and William P. Barr testify publicly before Congress about the leak investigations, including about subpoenas issued to tech companies in 2017 and 2018 for the records of at least a dozen people tied to the House Intelligence Committee. The senators vowed to “vigorously investigate” and called on Republicans to join them.

Apple, which complied with a subpoena for information related to more than 100 email addresses and phone numbers in February 2018, said on Friday that it did not realize that the records belonged to Representative Adam B. Schiff of California, the top Democrat on the Intelligence Committee, and his associates. Microsoft said it was also subpoenaed by a grand jury as early as November 2017 for data related to an email account for an aide to the panel.

Democrats and privacy advocates denounced the exceedingly unusual seizures related to Congress, reported on Thursday by The New York Times, as an abuse of power. Some called on lawmakers to pursue legal changes to crack down on the kind of gag orders used for years to keep companies from disclosing the subpoenas. Others urged the Justice Department to punish investigators who sought the records.

“I hope every prosecutor who was involved in this is thrown out of the department,” said Representative Eric Swalwell of California, a Democrat on the intelligence panel whose records were also seized. “It crosses the line of what we do in this country.”

The episode added fuel to accusations of politicization in the Trump-era Justice Department, where federal prosecutors seemingly gave lenient treatment to some of the former president’s allies and targeted reporters and Democrats he reviled as the administration sought to stop leaks about Trump associates and Russia.

The Biden Justice Department had disclosed in recent weeks that the same investigators secretly seized phone records of journalists at The Washington Post, CNN and The New York Times. Related fights over email data spilled over into the early Biden era, including the imposition of gag orders on CNN and Times executives and lawyers that were only recently lifted.

The White House vowed again on Friday to put an end to those practices, while also saying that President Biden was adamant that the Justice Department must be free of political influence.

Andrew Bates, a deputy White House press secretary, said in a statement that “the reported conduct” of the Trump-era Justice Department was “shocking, and clearly fits within an appalling trend that represents the opposite of how authority should be used.”

In an interview with Politico on Friday, Mr. Barr sought to distance himself from the tactics. He said he was “not aware of any congressman’s records being sought in a leak case” while he was attorney general. The subpoenas to Apple and Microsoft for congressional records were issued before his tenure.

Congressional Democrats welcomed the assurance from the Biden administration but signaled that they were unwilling to take the Justice Department at its word. Representative Jerrold Nadler, Democrat of New York and the chairman of the House Judiciary Committee, said the department had a “very short window to make a clean break from the Trump era on this matter” before his panel would step in.

“We expect the department to provide a full accounting of these cases, and we expect the attorney general to hold the relevant personnel accountable for their conduct,” Mr. Nadler said. “If the department does not make substantial progress toward these two goals, then we on the Judiciary Committee will have no choice but to step in and do the work ourselves.”

The Justice Department’s inspector general, Michael E. Horowitz, might stand the best chance of piecing together a full picture of what took place. He said on Friday that he would review the department’s use of subpoenas and other legal maneuvers to secretly seize communications records associated with both Congress and reporters.

“The review will examine the department’s compliance with applicable D.O.J. policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations,” Mr. Horowitz said.

His announcement followed a referral by the deputy attorney general, Lisa O. Monaco, according to a senior Justice Department official; Attorney General Merrick B. Garland directed her to take that step, the official said. Speaker Nancy Pelosi also called for an inspector general investigation.

Mr. Schiff welcomed the inquiry but said it was insufficient. He called on Congress to take a broader look at “the systemic politicization of the department and its mission, and other flagrant abuses.”

An investigation by Senate Democrats could provide that broader perspective. But it might be hampered by Republicans’ willingness to participate in an evenly divided Senate, complicating the ability of investigators to issue subpoenas for information or to compel testimony.

“This issue should not be partisan; under the Constitution, Congress is a coequal branch of government and must be protected from an overreaching executive, and we expect that our Republican colleagues will join us in getting to the bottom of this serious matter,” said Senator Chuck Schumer of New York, the majority leader, and Senator Richard J. Durbin of Illinois, the chairman of the Judiciary Committee.

But Republicans did not appear eager to take part. Senator Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, issued a skeptical statement suggesting that the Trump administration had reason to investigate whether lawmakers or their staff were leaking information, and that he would prefer to simply let Mr. Horowitz’s work play out.

“Investigations into members of Congress and staff are nothing new, especially for classified leaks,” he said. “The Justice Department has specific procedures for such sensitive investigations, and the inspector general is already working to determine if they were followed.”

Though leak investigations are routine, seizures of reporters’ information is fraught — and, according to current and former officials at the Justice Department and in Congress, seizing data on lawmakers outside the context of a corruption investigation is nearly unheard-of.

Secretly seizing communications-related data about members of Congress and their staff and families for a leak investigation was “extremely unusual,” said David Kris, who led the Justice Department’s national security division during President Obama’s first term.

“You likely wouldn’t do this at all,” he said. “It’s definitely fraught. It would definitely get high-level review and approval; it’s unthinkable to me that it would go anywhere short of the attorney general.”

The Times also reported that prosecutors had struggled to develop information tying members of the Intelligence Committee or their aides to the leaks, but Mr. Barr, after he was sworn in in 2019, objected to closing the inquiry. The case was ultimately closed without charges.

A person close to Mr. Sessions said that he, too, did not know that the Justice Department had subpoenaed data belonging to members of the House Intelligence Committee and their staff and family. At the time, investigators were trying to identify the source of leaks about the Russia investigation; Mr. Sessions was recused from most matters related to Russia after he had spoken with the Russian ambassador during the 2016 campaign.

Rod J. Rosenstein, Mr. Sessions’s deputy, who handled matters from which the attorney general recused himself, declined to comment.

In this case, affiliates of the Intelligence Committee learned the full extent of the scrutiny only in May, after a gag order on Apple expired and the company notified individuals whose data had been turned over pursuant to the subpoenas.

But there were earlier signs of activity as well. The F.B.I. questioned Michael Bahar, a former House Intelligence Committee staff member, in the spring of 2020, according to current and former government officials.

A copy of the subpoena to Microsoft reviewed by The Times shows that the department was seeking records going back to April 2016 that might have tied the committee official to particular accounts, like information about who was using the account, with what devices, how they were logging on, from where and when, and other subscriber information given to Microsoft when the account was set up.

A Microsoft spokesman confirmed on Friday that it had received the subpoena but had also been subject to a gag order for more than two years that prevented the company from informing the aide about the seizure.

Katie Benner contributed reporting.

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