The Washington PostDemocracy Dies in Darkness

Trump Justice Dept. secretly subpoenaed records of two Democrats on House Intelligence Committee

From left, Reps. Adam B. Schiff (D-Calif.), then the ranking minority-party member on the House Intelligence Committee, and Eric Swalwell (D-Calif.) depart an interview with former White House chief strategist Stephen K. Bannon in 2018 as part of the panel’s Russia investigation. (J. Scott Applewhite/AP)
Placeholder while article actions load

The Justice Department in 2018 secretly subpoenaed Apple for the data of two Democrats on the House Intelligence Committee, as well as the data of their current and former staffers and family members, in an aggressive push by the Trump administration to determine who was leaking classified information to the news media, according to a committee official and one of the affected lawmakers.

The department sought data on two lawmakers from California who were prominent critics of President Donald Trump — Rep. Adam B. Schiff, then the panel’s ranking Democrat and now its chairman, and Rep. Eric Swalwell — the committee official and Swalwell said Thursday night. The committee official, who like others spoke on the condition of anonymity because the matter remains politically sensitive, said that Apple in May had notified at least 12 people connected to the panel of subpoenas for their data, and that one minor was among them.

Democrats swiftly condemned the moves, news of which followed three recent disclosures to national media organizations that the Trump Justice Department had secretly sought reporters’ phone and email records in an effort to identify the sources of leaks.

“President Trump repeatedly and flagrantly demanded that the Department of Justice carry out his political will, and tried to use the Department as a cudgel against his political opponents and members of the media. It is increasingly apparent that those demands did not fall on deaf ears,” Schiff said in a statement. “The politicization of the Department and the attacks on the rule of law are among the most dangerous assaults on our democracy carried out by the former President.”

News of the department’s moves to obtain lawmakers’ data were first reported by the New York Times. A Justice Department spokesman declined to comment. A spokesperson for Apple did not respond to requests for comment, and Trump did not immediately comment.

Amid controversy, Justice Dept. says it won’t seek to compel journalists to give up source information

Schiff said in his statement that the committee was informed by the Justice Department in May that the investigation had been closed. Appearing on CNN late Thursday night, Swalwell said he had been notified by Apple that the Justice Department had subpoenaed records of his communications from the 2017-2018 period. He condemned in particular that the move was kept secret for so long.

“It is concerning that they continued to seek our records with no evidence that there was any wrongdoing other than that they were calling the president out for his corruption,” Swalwell said, adding, “It’s a fragile time for our democracy.”

Swalwell and Schiff were regular fixtures on cable news during the Trump administration’s early years, when Democrats were in the minority and Republicans were running the House Intelligence Committee’s investigation into Russian interference in the 2016 election.

“Of course it’s closed,” Swalwell said of the Justice Department’s investigation during his appearance on CNN, “because we did nothing but our jobs, and we followed the rules we were supposed to follow. I’m not above the law, just like no one else is above the law, but to go after this many people, boy, that feels like a Donald Trump-driven investigation and I don’t have a lot of faith in his ability to fairly interpret the law.”

Leak investigations have been hallmarks of both Republican and Democratic administrations, but the move to secretly obtain lawmakers’ records — a dramatic step with significant political consequences — underscores the zeal with which Trump’s Justice Department was willing to pursue such cases.

Attorney General Jeff Sessions in August 2017 held a news conference to boast that the department had more than tripled the number of leak investigations compared with the number that were ongoing at the end of the Obama administration. Behind the scenes, the department’s National Security Division and other officials were meeting regularly — at times biweekly — to discuss the progress of such cases, which generally move slowly, according to people familiar with the matter.

It was not immediately clear what specific leak investigators were concerned about in seeking the records of the congressmen and their staff, or who they might have suspected of wrongdoing. The move to get lawmakers’ records occurred when Sessions was attorney general, but the investigation continued under Attorney General William P. Barr, two people familiar with the matter said.

During Barr’s time in command, these people said, the lawmakers were not considered targets of any leak probe, though investigators had suspicions about congressional staffers.

According to people familiar with the matter, when Barr took over, he set his sights on about seven leak cases he viewed as languishing in the bureaucracy of the Justice Department’s National Security Division and brought in a prosecutor who had been recommended by the U.S. attorney in New Jersey to try to move them forward.

The move was viewed as somewhat unusual, because the department has career officials who specialize in leak cases, though Barr was known to assign people he trusted to assignments of particular importance to him. Some in the department thought that, like most leak cases, the investigations would never produce charges because of the difficulty prosecutors have in winnowing down the pool of people who might have revealed the information at issue.

The committee aide said that the Justice Department has declined to provide any substantive details of the subpoenas, and that other members and staff were still scouring their email accounts to discern whether they, too, had received notifications from Apple similar to those of their colleagues.

Schiff called on the Justice Department’s inspector general to investigate. House Speaker Nancy Pelosi (D-Calif.) echoed the request.

“Transparency is essential,” she said in a statement late Thursday.

Reps. Jim Himes (D-Conn.) and Mike Quigley (D-Ill.), other prominent members of the House Intelligence Committee, both said that after reviewing their records, they were not aware of having received any notifications from Apple that their information had been subpoenaed — though they said they could not definitively rule out having potentially missed such a notification.

Quigley said he surmised that Democrats might end up in the Trump administration’s crosshairs “from Day One.”

“I saw no distinction between the Justice Department and the Trump administration, so I was assuming the Trump administration would try something like this,” he said in an interview. “That was from Day One.”

The Justice Department has been under fire for its aggressive pursuit of leakers in recent weeks, after officials notified The Washington Post, CNN and the New York Times that prosecutors had secretly sought to obtain reporters’ phone and email records in 2020. In the case of CNN and the Times, the organization’s lawyers were, for a time, prohibited from revealing legal negotiations over the Justice Department’s requests.

President Biden has vowed he would not allow the Justice Department to take reporters’ records, and Attorney General Merrick Garland said at a recent congressional hearing that he was drafting a memo to codify that guidance. On Monday, leaders of The Post, the Times and CNN are scheduled to meet with Garland to discuss the matter.

Requests for reporters’ records in leak investigations are different than efforts to get records of lawmakers or their staff, though both carry with them significant political sensitivities.

Reed Albergotti in San Francisco contributed to this report.