The announcement from Justice Department Inspector General Michael Horowitz came amid growing furor in Congress, where leaders pressed the department to reveal more about its secret 2018 move to subpoena Apple for lawmakers’ data and demanded that attorneys general in the Trump administration come answer questions on Capitol Hill.
A spokesman for President Biden, meanwhile, blasted the Trump Justice Department’s move to seek lawmakers’ data, saying it “clearly fits within an appalling trend that represents the opposite of how authority should be used.”
“President Biden is absolutely committed to the independence of the Department of Justice, and — having served as a Senator for decades — to respecting the all-important rights of Congress as a co-equal branch of government,” the spokesman, Andrew Bates, said in a statement.
Horowitz announced that his review would “examine the Department’s compliance with applicable DOJ policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations.”
While Democrats had called for such an inquiry, the inspector general’s examination is likely to be limited. Horowitz cannot compel the cooperation of former Justice Department officials, and almost all of the political appointees involved are now out of government. Democrats noted that Biden’s Justice Department also has questions it needs to answer — and current personnel who might need to be held accountable.
“The Committee has been in communication with DOJ, and we have made our position clear. The Department has a very short window to make a clean break from the Trump era on this matter,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a statement Friday, questioning also whether “the corruption may run deeper than has already been reported.”
“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,” Nadler said. “If the Department does not make substantial progress towards 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 has for weeks been facing criticism after it disclosed to three media organizations — The Washington Post, CNN and the New York Times — that officials had, largely during the Trump administration, secretly sought non-content phone and email records of reporters to advance leak investigations. Biden and Attorney General Merrick Garland both vowed to discontinue the practice, though they have not answered repeated requests for information on what happened in the past administration and on their watch. Negotiations over Times reporters’ records went on in secret for months into the Biden administration.
The controversy reached a new pinnacle when it was reported Thursday night that the Justice Department in February 2018 secretly subpoenaed Apple for the data of two California Democrats on the House Intelligence Committee, Reps. Adam B. Schiff and Eric Swalwell, as well as the data of their current and former staffers and family members.
An Intelligence Committee official, who like others spoke on the condition of anonymity because the matter remains politically sensitive, said Thursday night 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. 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 Intelligence Committee’s investigation of Russian interference in the 2016 election.
Apple spokesman Fred Sainz said in an emailed statement that the company received the subpoena on Feb. 6, 2018. The subpoena, which provided no context into the nature of the investigation, sought customer or subscriber account information for 73 phone numbers and 36 email addresses, he said.
Apple regularly challenges warrants, subpoenas and nondisclosure orders, and has a policy of notifying customers about government data requests as soon as it can, Sainz said.
“In this case, the subpoena, which was issued by a federal grand jury and included a nondisclosure order signed by a federal magistrate judge, provided no information on the nature of the investigation and it would have been virtually impossible for Apple to understand the intent of the desired information without digging through users’ accounts,” Sainz said. “Consistent with the request, Apple limited the information it provided to account subscriber information and did not provide any content such as emails or pictures.”
The nondisclosure order was extended three times. The company notified customers about the data requests on May 5, after the Justice Department did not extend the order for a fourth time.
Late Friday, Microsoft acknowledged that it, too, received a subpoena related to a personal email account of a congressional staffer. The company did not name the aide, nor the lawmaker for whom he or she worked. The government only sought metadata such as access logs, which indicate when someone has signed into their account. Like Apple, Microsoft did not provide the contents of emails.
“In this case, we were prevented from notifying the customer for more than two years because of a gag order,” the company said in a statement.
Microsoft said that when the nondisclosure order expired, it notified the aide then, and briefed the representative’s staff.
Many questions remain about the move — chief among them, what leak was being investigated and on what basis, and who at the Justice Department approved the subpoenas. In February 2018, Jeff Sessions was attorney general, though a person familiar with the matter said he has told people he did not recall approving a subpoena for lawmakers’ data in a leak case. Sessions was recused from many Russia-related matters, including special counsel Robert S. Mueller III’s investigation of the Kremlin’s interference in the 2016 election. A person close to Rod J. Rosenstein, Sessions’s deputy attorney general, said he, too, has told people he did not recall hearing about the subpoena until news of it broke publicly.
Two other people said William P. Barr — Trump’s second attorney general — also has told people he did not remember being informed of any subpoenas for lawmakers’ data during his time leading the department. He conveyed as much to Politico on Friday, and also asserted he “never discussed the leak cases with Trump.”
On Friday, Senate Democratic leaders demanded that Barr and Sessions testify about the matter on Capitol Hill. Barr declined to comment on whether he would, referring questions to the Justice Department. Sessions did not respond to a message forwarded to him by a representative.
Senate Majority Leader Charles E. Schumer (D-N.Y.) and Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said in a statement that if Barr and Sessions did not voluntarily testify, 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.
“The revelation that the Trump Justice Department secretly subpoenaed metadata of House Intelligence Committee Members and staff and their families, including a minor, is shocking,” Schumer and Durbin said. “This appalling politicization of the Department of Justice by Donald Trump and his sycophants must be investigated immediately by both the DOJ Inspector General and Congress.”
Democrats also called on Horowitz to investigate, and on Friday a Justice Department official said Deputy Attorney General Lisa Monaco — at Garland’s direction — referred the matter to the inspector general’s office.
Some Democrats welcomed the move, while asserting it was not enough. Inspector-general investigations can take many months and give officials an excuse to duck questions from reporters or others. A Justice Department spokesman declined to comment for this article, citing the inspector general’s investigation.
Such an investigation “is an important step. But it cannot be a substitute for congressional oversight,” Rep. Joe Neguse (D-Colo.) said on Twitter. “The House Judiciary Committee should subpoena Jeff Sessions & Bill Barr.”
Congressional investigations, though, also can be limited. The Trump administration repeatedly stymied House Democrats’ efforts to subpoena witnesses and documents as part of its investigations surrounding the then-president, dragging lawmakers to court to enforce their summonses.
Both Sessions and Barr had waged a vigorous crackdown on leaks of classified information. In August 2017, Sessions 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 the deputy attorney general’s office were meeting regularly — at times biweekly — to discuss the progress of such cases.
Though other Trump-appointed political leaders have left, the head of the national security division, John Demers, has remained on in the Biden administration.
The leak cases being investigated were eclectic, according to people familiar with the matter.
One had to do with reporting on the military. Others related to media disclosures about possible ties between the Trump campaign and Russia, the people said. At least one case seemed to be focused on former FBI director James B. Comey, whom Trump considered a political foe, and news reporting in 2017 about a classified document thought to be a Russian intelligence product.
Two people familiar with the matter said that, when Sessions was attorney general, officials began to explore whether current or former staffers on the House Intelligence Committee were providing classified information to reporters.
Leak cases are notoriously difficult, and some came to believe that investigation — as well as others — were likely to go nowhere, people familiar with the matter said. But Barr, two of the people said, believed the cases were languishing in part because the national security division was not willing to push aggressively to bring charges or formally close the cases.
Early that year, Barr tapped a federal prosecutor in New Jersey — Osmar Benvenuto — to assist in the leak investigations, hopeful he could push them forward, one way or the other. Benvenuto, two people familiar with the matter said, came recommended by Craig Carpenito, then the New Jersey U.S. attorney.
A friend who spoke with Benvenuto at the time said the prosecutor — who records show registered to vote as a Democrat — expressed some reservations about the assignment but also felt it was important to have objective eyes on such sensitive matters.
“Though he had real concerns about going down, he had a real sense of obligation,” the friend said, speaking on the condition of anonymity to detail a private conversation. The friend said he warned Benvenuto to make clear to whoever his supervisors were that if he were to take the job, he would do it “the right way.”
With Benvenuto around, investigators pushed for an interview with a former Intelligence Committee staffer they had come to suspect, according to two people with the matter. They ultimately did not bring any charges. Schiff said Thursday he had been informed in May that the matter in which his data was sought was closed.
Benvenuto did not return an email seeking comment, and a Justice Department spokesman declined to make him available.
Pursuing a congressional staffer for a possible leak is not unheard of. The Justice Department in the Trump administration, for example, charged a former staff member of the Senate Intelligence Committee, James Wolfe, with making false statements to the FBI during an investigation of the leak of classified information. In that investigation, the Justice Department seized phone and email records of a New York Times reporter, Ali Watkins, who had previously been in a romantic relationship with Wolfe.
Sen. Charles E. Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, asserted in a statement that it was too early to render judgment on whether the Trump administration’s effort to investigate leakers amounted to an abuse of power. The department — either publicly, in court or in private negotiations — has previously defended its efforts to obtain records of Post, Times and CNN reporters as running according to policy.
“Investigations into Members of Congress and staff are nothing new, especially for classified leaks,” Grassley said. “The Justice Department has specific procedures for such sensitive investigations, and the inspector general is already working to determine if they were followed.”
Jay Greene contributed to this report.