2017–2018 Department of Justice metadata seizures
The United States Department of Justice under the Trump administration acquired by a February 2018 subpoena the Apple iCloud metadata of two Democrats on the House Intelligence Committee, several others associated with the committee, and some of their family members. The subpoena covered 73 phone numbers and 36 email addresses since the inception of the accounts. Seizing communications information of members of Congress is extraordinarily rare. The department also subpoenaed and obtained 2017 and 2018 phone log and email metadata from news reporters for CNN, The Washington Post and The New York Times. Apple also received and complied with February 2018 subpoenas for the iCloud accounts of White House counsel Don McGahn and his wife. Microsoft received a subpoena relating to a personal email account of a congressional staff member in 2017.
The seizures were made under unusual gag orders and were part of the department's attempt to identify who had leaked information to the press about contacts between Trump associates and Russian officials, as well as foreign policy matters. The subpoenas began under Attorney General Jeff Sessions, who in March 2017 had recused himself from all investigations relating to Russia, and continued under Attorney General Bill Barr. Both men, and their deputy Rod Rosenstein, later said they had no knowledge of the subpoena for members of Congress. The subpoenas first came to the attention of the public via press reports in May 2021, as gag orders expired and the targets of the subpoenas were finally notified that their data had been given to the Justice Department. The Justice Department inspector general and House Judiciary Committee soon opened investigations.
Background
Slate reported in 2013 that the government's interpretation of "metadata" could be broad, and might include message content such as the subject lines of emails.The Justice Department's use of the Espionage Act of 1917 to seek reporter records dramatically increased over the last 2 decades, with the Bush and Obama administrations also relying on the law to pursue leakers. The Obama Justice Department under Eric Holder was sharply criticized for its use of subpoenas to acquire metadata of journalists in an unprecedented crackdown on leaks of classified information to the press. Beginning in 2014, Holder instituted new rules to curtail but not eliminate such practices.
Leading up to and following the 2016 United States presidential election, there were widespread press reports that Russia attempted to influence the election so as to favor Donald Trump and oppose Hillary Clinton. Even before his inauguration, President-elect Trump demanded investigations to find out who was leaking information about the Russian activity. After Trump took office as president in 2017, the Justice Department under Attorney General of the United States Jeff Sessions undertook a vigorous investigation into who had leaked information to the press about the Russian interference, and particularly about any contact between Trump associates and Russia.
In June 2017 the Justice Department announced charges against Reality Winner, a federal contractor. Prosecutors charged that she had sent a top-secret NSA document pertaining to a 2016 Russian military intelligence cyberattack to The Intercept. In 2018, she was convicted of "removing classified material from a government facility and mailing it to a news outlet" and given the longest sentence ever imposed for unauthorized release of government information to the media. Sessions continued to push for the FBI to prioritize leak investigations. Sessions vowed that he would confront leaks of classified information - a subject which had greatly angered Trump. Trump had repeatedly called for increased prosecution of leaks.
In August 2017, the push for leak investigations escalated dramatically when The Washington Post reported the full leaked transcripts of two previously reported phone conversations President Trump had with Mexican President Enrique Peña Nieto and Australian Prime Minister Turnbull in January 2017. Trump was reportedly enraged for weeks by the phone leaks as undermining his ability to conduct candid foreign policy and internally demanded that fewer people attend his calls. Sessions stated that he would review policies affecting media subpoenas. In November 2017, Sessions told Congress that there were 27 open investigations into what he called an "epidemic" of leaks of classified information, about nine times what the Obama administration had undertaken. In June 2018, the White House stopped the practice of publishing public readouts of Trump's calls with world leaders partly in response to the leaks.
Metadata seizure
CNN
CNN reported in May 2021 that the Trump Justice Department had secretly acquired by court order the phone logs and email metadata of its Pentagon reporter Barbara Starr for the months of June and July 2017, spanning more than 30,000 email records. The Biden Justice Department disclosed in August 2021 that Barr approved the seizure of Starr's communications in May 2020. Prosecutors were seeking email records from a time period when Starr reported on US military options in North Korea that were ready to be presented to Trump, as well as stories on Syria and Afghanistan. G. Zachary Terwilliger, U.S Attorney for the Eastern District of Virginia oversaw the orders and investigation into CNN with the involvement of prosecutors from the DOJ National Security Division. As of July 1, probes are being conducted into whether management knew about these investigations. Head of the DOJ National Security Division, Assistant Attorney General John Demers has denied knowledge of these actions.CNN General Counsel David Vigilante was prohibited under a gag order issued by a federal magistrate judge in the Eastern District of Virginia from sharing any details about the government's efforts with anyone beyond the network's president, top attorneys at CNN's corporate parent and attorneys at an outside law firm. Specifically, Vigilante was forbidden from knowing the contents of the investigation, its subjects, the subject matter of the reporting at issue, the time the investigation opened, and from informing the reporter targeted. The DOJ gave little notice to CNN and made Vigilante subject to several restrictions with the risk of contempt and obstruction of justice for refusing to comply. Vigilante retained Jamie Gorelick, Aaron Zebley, and Paul Wolfson from the law firm Wilmer Cutler Pickering Hale and Dorr. CNN President Jeff Zucker was then debriefed on the orders.
CNN filed a motion on September 11, 2020, requesting the judge limit the order. On October 7, 2020, federal Magistrate Theresa Buchanan in Virginia granted the motion and ordered the Justice Department to narrow its search of records related to the relevant account. On October 9, 2020, the DOJ filed a motion to reconsider the court's order, providing a classified affidavit, and Buchanan reversed herself, ordering CNN to comply. On December 16, 2020, CNN had its appeal issued a month earlier heard in district court. In a statement, US District Judge Anthony Trenga said:
"he court has reviewed the government's explanation for why speculative predictions, assumptions, and scenarios unanchored in any facts.... the requested information by its nature is too attenuated and not sufficiently connected to any evidence relevant, material, or useful to the governments ascribed investigation, particularly when considered in light of the First Amendment activities that it relates to."The district court narrowed the order, and CNN pressed for notifications before additional subpoenas for Starr's data. On January 15, 2021, Justice Department again filed a motion to reconsider. On January 26, 2021, in the beginning of the Biden administration, the DOJ and CNN reached a mutual resolution and concluded the litigation, requiring Starr to be notified of the seizure of her communications on May 13, 2021.
New York Times
The New York Times reported in April 2017 that during the investigation into the Hillary Clinton email controversy, the FBI was provided documents acquired by Dutch intelligence hackers which had previously been stolen by Russian intelligence, and which the Justice Department had classified. In June 2021 it became known that the Justice Department had attempted by court order to obtain the phone logs and email logs, sans contents, of Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael Schmidt, four Times reporters who had written the article together. DOJ obtained the phone logs in 2020, according to a spokesman for the Biden Justice Department. The Biden Justice Department disclosed in August 2021 that Barr approved the seizures in September 2020.On January 5, 2021, acting head of the DC U.S. attorney's office Channing Phillips obtained a court order from a magistrate judge under seal requiring Google, which operates The Times's email system, to secretly turn over email logs of the four reporters. Contractually obligated to inform NYT of the effort, Google resisted the order. No email records were ultimately obtained in the effort. Through negotiations, NYT was able to be informed to a limited extent of the investigation through its lawyers and intended to ask the court to challenge the order. The Biden administration, while continuing to pursue the email records, notified a few NYT executives of its quest, but subjected them to a gag order on March 3 which prevented them from disclosing the government's efforts even to its executive editor, Dean Baquet. An NYT lawyer commented that it was "unprecedented" for the DOJ to impose a gag order as part of a leak investigation, and until then had never seized NYT's phone records without advance notice.
On June 2, 2021, the DOJ informed NYT it would quash the order to Google and disclose its prior seizure of phone records. During the transition into the Biden administration, one official wrote a memo that the controversial order should be terminated and the case closed. However, the leak investigations and gag orders were maintained under the Biden DOJ until the gag orders expired and investigations disclosed to the press.