The tech company Apple recently notified former White House counsel Donald McGahn and his wife that the Justice Department had secretly requested their information in 2018, an individual familiar with the request said Sunday.
It was not immediately clear what was being investigated that prompted the Justice Department to seek the information. The move was first reported Sunday by the New York Times.
Seizing a White House counsel’s data is striking. The latest development comes amid widespread criticism of newly reported Trump-era leak investigations involving members of Congress who were outspoken critics of President Donald Trump and journalists at several news organizations, including The Washington Post. Meanwhile, Republicans have questioned the Justice Department’s seizure of records of Rudolph W. Giuliani, Trump’s personal attorney, and another lawyer, Victoria Toensing.
The Justice Department’s internal watchdog announced Friday that he would review how officials sought the data of journalists and others as part of an aggressive crackdown on leaks during the Trump administration after it was revealed that the department a few years ago had secretly obtained the data of two Democratic congressmen.
The Justice Department declined to comment Sunday, and it could not immediately be learned whether investigators were targeting McGahn and his family specifically or whether they came across the pair incidentally while sifting through the records of someone else. In McGahn’s case, it was not immediately clear what precise data was sought or for what period.
McGahn declined to comment through his attorney, William Burck.
When investigators obtain a person’s phone or email records — who they contacted and who contacted them — one of the things they must do is identify who owns all the accounts on a lengthy list. That leads them to subpoena communications companies for data associated with the accounts — such as names and credit card information — to learn who controls them.
An Apple spokesman did not immediately respond to a request for comment.
McGahn, who had also been a lawyer representing the Trump campaign, was a key figure in special counsel Robert S. Mueller III’s investigation, and it is possible that his data could have been swept up as prosecutors probed those with whom he might have been in contact. McGahn himself cooperated extensively with Mueller.
Apple told McGahn that the subpoena for his data was issued in February 2018, the person familiar with the matter said. The month before, the New York Times and The Post had reported on a conversation in which Trump sought the firing of Mueller in a conversation with McGahn. McGahn, according to The Post’s report, contemplated resigning over the matter, though he did not convey his threat to do so directly to the president. McGahn testified about his dealings with Trump and Mueller earlier this month at a closed-door session of the House Judiciary Committee.
According to Mueller’s report, Trump complained about the reporting and called McGahn’s attorney seeking to have McGahn dispute it. While it is possible that Trump would have wanted to investigate how the episode made its way into news reports, the disclosure did not appear to involve classified information, which is normally what is needed to trigger a Justice Department leak probe.
The Trump-era investigations drew complaints recently, particularly after it was disclosed last week that records of two House Democrats from California — Reps. Adam B. Schiff and Eric Swalwell — were sought in February 2018 in connection with a leak investigation, along with data of staffers and others connected to the House Intelligence Committee.
Schiff, who headed the investigation that led to Trump’s first impeachment, in 2019, and Swalwell frequently criticized the president.
Senate Majority Leader Charles E. Schumer (D-N.Y.) and Sen. Richard J. Durbin (D-Ill.), chairman of the Senate Judiciary Committee, on Friday demanded that former attorneys general William P. Barr and Jeff Sessions testify about the matter on Capitol Hill.
If they did not do so voluntarily, Schumer and Durbin said, they would be subpoenaed to appear before Durbin’s committee. Such a move would require the support of at least one Republican on the panel.
Barr has declined to comment on whether he would, referring questions to the Justice Department. Sessions has not responded to a message forwarded to him by a representative last week.
“What the Republicans did — what the administration did . . . goes even beyond Richard Nixon,” House Speaker Nancy Pelosi (D-Calif.) told CNN in an interview Sunday. “Richard Nixon had an enemies list. This is about undermining the rule of law.”
She expressed skepticism that Barr, Sessions and former deputy attorney general Rod J. Rosenstein were unaware of the searches.
“For these attorneys general . . . to say they didn’t know anything about it is beyond belief. So, we will have to have them come under oath to testify,” Pelosi said.
Sen. Susan Collins (R-Maine), a member of the Senate Intelligence Committee, said that the Justice Department searches speak to two distinct and troubling issues.
“One has to do with whether there was a leak of classified information by members of Congress, but the second is whether the Justice Department has abused its power by going after members of Congress and the press for partisan political purposes,” said Collins, who expressed support for the inspector general investigation.
The senior Republican on the House Foreign Affairs Committee, Rep. Michael McCaul of Texas, told ABC’s “This Week” that he was troubled by the report of searches involving members of Congress and journalists.
“Any time you open a case against a — or a subpoena against a member of Congress or a journalist, there’s a very high predication to that,” said McCaul, a former Justice Department prosecutor.
“The inspector general — DOJ — is now investigating this. And I think that’s where it properly belongs,” he added.
Kenneth W. Starr, who served in the Justice Department and was the independent counsel who investigated President Bill Clinton, said he was concerned about the recent reports of searches, including those of McGahn, members of Congress, journalists, Giuliani and Toensing, a lawyer whose records were seized as part of the probe to determine whether Giuliani broke the law by failing to register as an agent of Ukrainian figures in 2019 and 2020.
Giuliani had denied any wrongdoing. Toensing said she has been told she is not a target.
“The loss of liberty begins with small incursions by powerful sources. All too soon, the small incursions become a larger trend. That’s happening now. It needs to be stopped,” Starr said.
Search requests for Giuliani and Toensing were made directly by Justice Department prosecutors looking to determine whether violations of the Foreign Agents Registration Act had occurred. Toensing has said she has been informed by the Justice Department that she is not a target of the inquiry and lawyers for Giuliani and Toensing have called the searches an improper breach of lawyer-client protections and their Sixth Amendment rights.
It is possible that records of the lawmakers and McGahn were not sought directly, but rather the Justice Department got their information in seeking to identify accounts associated with numbers in the records of someone else.
Apple has said that the Justice Department’s request sought customer or subscriber account information for 73 phone numbers and 36 email addresses. Microsoft has acknowledged that it, too, received a subpoena related to a personal email account of a congressional staffer.
The searches of Giuliani and Toensing are particularly troubling, said John Yoo, deputy assistant attorney general during the George W. Bush administration, because Giuliani served as Trump’s attorney while he was in office and Toensing is a veteran of the Justice Department.
“A potential Foreign Agents Registration Act violation seems like such a thin reed to go after people,” in this fashion, he said noting that the FARA law was rarely enforced in its 60-year history. Yoo said the search of records of members of Congress and the former White House counsel deepened his concern.
“These are all cases of prosecutors running beyond the control of our elected officials, which is precisely what the Constitution’s separation of powers was designed to prevent,” he said.
Joseph Marks and Amy B Wang contributed to this report.