The Justice Department's internal watchdog launched an investigation Friday after revelations that former President Donald Trump's administration secretly seized phone data from at least two House Democrats as part of an aggressive leaks probe. Democrats called the seizures “harrowing” and an abuse of power.
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.”
Horowitz said he would also investigate similar Trump-era seizures of journalists' phone records.
House Intelligence Committee Chairman Adam Schiff, D-Calif., and another Democratic member of the panel, California Rep. Eric Swalwell, said Apple notified them last month that their metadata had been subpoenaed and turned over to the Justice Department in 2018, as their committee was investigating the former president's ties to Russia. Schiff was then the top Democrat on the panel, which was led by Republicans.
While the Justice Department routinely investigates leaked information, including classified intelligence, subpoenaing the private information of members of Congress is extraordinarily rare. The disclosures, first reported by The New York Times, raise questions about what the Justice Department's justification was for spying on another branch of government and whether it was done for political reasons.
In a statement, White House deputy press secretary Andrew Bates said the Trump administration's conduct is “shocking” and “clearly fits within an appalling trend that represents the opposite of how authority should be used.”
Bates said one of President Joe Biden's top reasons for seeking the presidency was “his predecessor’s unjustifiable abuses of power, including the repugnant ways he tried to force his political interests upon the Department of Justice.”
The Trump administration’s secretive move to gain access to the data came as the president was fuming publicly and privately over investigations — in Congress and by then-special counsel Robert Mueller — into his campaign’s ties to Russia. Trump called the probes a “witch hunt,” regularly criticized Democrats and Mueller on Twitter and dismissed as “fake news” leaks he found harmful to his agenda. As the investigations swirled around him, he demanded loyalty from a Justice Department he often regarded as his personal law firm.
Swalwell and Schiff were two of the most visible Democrats on the committee during the Russia probe, making frequent appearances on cable news. Trump watched those channels closely, if not obsessively, and seethed over the coverage.
Schiff said the seizures suggest “the weaponization of law enforcement by a corrupt president" and urged the Justice Department to do “a full damage assessment of the conduct of the department over the last four years.”
Senate Democratic leaders immediately demanded that former Attorneys General Bill Barr and Jeff Sessions, who both oversaw Trump's leak probes, testify about the secret subpoenas. Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chairman Dick Durbin said in a statement that “this appalling politicization of the Department of Justice by Donald Trump and his sycophants” must be investigated. They said Barr and Sessions are subject to a subpoena if they refuse.
Prosecutors from Trump’s Justice Department had subpoenaed Apple for the data. The records of at least 12 people connected to the intelligence panel were eventually shared by the company, including aides, former aides and family members. One was a minor.
The subpoena, issued in February 2018, requested information on 73 phone numbers and 36 email addresses, Apple said. It also included a non-disclosure order that prohibited the company from notifying any of the people, the company said in a statement. The subpoena didn’t include any context about the investigation and it would have been “virtually impossible for Apple to understand the intent of the desired information without digging through users’ accounts,” the company said.
Apple informed the committee last month that the records had been shared and that the investigation had been closed, but did not give extensive detail. The committee official and the two others with knowledge of the data seizures were granted anonymity to discuss them.
The Justice Department obtained the metadata — often records of calls, texts and locations — but not other content from the devices, like photos, messages or emails. The order prohibiting Apple from discussing the subpoena, or notifying the people whose records were being seized, was extended three times, one each year, Apple said.
“We regularly challenge warrants, subpoenas and nondisclosure orders and have made it our policy to inform affected customers of governmental requests about them just as soon as possible,” the company statement said.
House Speaker Nancy Pelosi, D-Calif., said in a statement that the data seizures "appear to be yet another egregious assault on our democracy” by the former president.
“The news about the politicization of the Trump Administration Justice Department is harrowing," she said.
The committee official said the House intelligence panel will ask Apple to look into whether additional lawmakers were targeted. The Justice Department has not been forthcoming on questions such as whether the investigation was properly predicated and whether it only focused on Democrats, the official said.
It is unclear why Trump's Justice Department would have targeted a minor as part of the probe. Swalwell, confirming that he was told his records were seized, told CNN on Thursday night that he was aware a minor was involved and believed that person was "targeted punitively and not for any reason in law.”
The Senate Intelligence Committee was not similarly targeted, according to a fourth person who was aware of the probe and granted anonymity to discuss it.
There's no indication that the Justice Department used the records to prosecute anyone. After some information related to the Russia investigation was declassified and made public during the later years of the Trump administration, some of the prosecutors were concerned that even if they could bring a leak case, conviction would be unlikely, one of the people said.
Federal agents questioned at least one former committee staff member in 2020, the person said, and ultimately, prosecutors weren’t able to substantiate a case.
The news follows revelations that the Justice Department had secretly seized phone records belonging to reporters at The New York Times, The Washington Post and CNN as part of criminal leak investigations. Following an outcry from press freedom organizations, the Justice Department announced last week that it would cease the practice of going after journalists’ sourcing information.