‘This is NOT spying’: Don’t look now, but the DOJ subpoena stories about Adam Schiff and Don McGahn appear to be blowing up

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‘This is NOT spying’: Don’t look now, but the DOJ subpoena stories about Adam Schiff and Don McGahn appear to be blowing up
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Former White House counsel Don McGahn has been trending all day thanks to this New York Times article by Michael Schmidt and Charlie Savage reporting that the “DOJ secretly subpoenaed Apple for personal info” of McGahn “and his wife in Feb ’18” and that the DOJ “barred Apple from telling them” about it at the time:

NEW: DOJ secretly subpoenaed Apple for personal info of Trump’s then WH counsel Don McGahn and his wife in Feb ’18. DOJ barred Apple from telling them at time but 3 years later in May ’21 Apple told them. It’s unclear what investigation it was related to. https://t.co/bqZAycoIo4

— Michael S. Schmidt (@nytmike) June 13, 2021

But this tweet from co-author Charlie Savage caught our eye: “Caution: You can’t conclude from the fact that McGahn was intentionally targeted,” which could make this the biggest “NEVER MIND!” report of the year:

Apple recently told Don McGahn, Trump’s former WH Counsel, that the Justice Department had secretly collected data about his account via a Feb 2018 subpoena. (Caution: You can’t conclude from this fact that McGahn was intentionally targeted.) w/ @nytmike https://t.co/CB3D0nUyol

— Charlie Savage (@charlie_savage) June 13, 2021

Just wow:

There is no evidence Trump spied on McGahn. Literally NONE. And those outlets who have chased this like puppies bc Don McGahn got the best of them owe the public an apology.

— emptywheel (@emptywheel) June 13, 2021

And it appears that not on this story but the earlier one about subpoenas targeting Adam Schiff is blowing up, too, as predicted by @pwnallthethings: “It’s going to be something astronomically dumb like FBI investigating a staffer who had phoned some congressmen and FBI asked Apple for subscriber info for all the numbers he called which has then morphed into a story about spying on said congressman”:

It’s going to be something astronomically dumb like FBI investigating a staffer who had phoned some congressmen and FBI asked Apple for subscriber info for all the numbers he called which has then morphed into a story about spying on said congressman isn’t it

— Pwn All The Things (@pwnallthethings) June 13, 2021

“OMG it really is that”:

Omg it really is that pic.twitter.com/vEh5dH3psm

— Pwn All The Things (@pwnallthethings) June 13, 2021

Time for some “painful corrections”:

Well this is going to be a painful correction when everyone finally works out quite how far the takes got from the facts

— Pwn All The Things (@pwnallthethings) June 13, 2021

And from law professor Orin Kerr:

Reporters looking into the Schiff and McGhan investigations should be making sure that when they report about “subpoenas,” they actually mean subpoenas and not 18 U.S.C. § 2703(d) orders (which are served like subpoenas). The latter are a lot more invasive than the former.

— Orin Kerr (@OrinKerr) June 13, 2021

WHOOPS?

1) This is NOT spying. The Schiff records and the McGahn records were, at most, call records (and w/McGahn probably not even that). These records are obtained on a “relevant to” standard, meaning there’s also NO allegation that Schiff or McGahn were investigated personally.

— emptywheel (@emptywheel) June 13, 2021

2) This is “just” metadata. Adam Schiff has championed the collection of ALL phone metadata in country (tho the program probably white-listed Members of Congress). He had no problem w/that. According to him, metadata is not that intrusive. He’s wrong, but still, that’s his stance

— emptywheel (@emptywheel) June 13, 2021

3) Apple and the other tech companies wouldn’t have known until they RESPONDED to the subpoenas that the data included Schiff and McGahn’s data. They had no basis to challenge the subpoena, much less legal reason to do so.

— emptywheel (@emptywheel) June 13, 2021

4) Apple subpoena–but NO McGahn subpoena, as described–was overly broad. If, as NYT reported, it got subscriber info AND call records from date of inception (I’m not entirely convinced that happened, but let’s assume it did), then it was in no way targeted to investigation.

— emptywheel (@emptywheel) June 13, 2021

So this is literally the first problem we get to: Why was the subpoena so sloppy, especially given that the (per NYT) actual target of it was a Congressional staffer, and so more sensitive? That’s a good question!

— emptywheel (@emptywheel) June 13, 2021

The two REALLY BIG concerns are 1) why Barr decided to revisit that data that had been collected 2 years earlier and 2) why he brought in (a credible) outsider to get involved. THAT’S where the story is, especially since he didn’t deny MoCs were targeted.

— emptywheel (@emptywheel) June 13, 2021

But there is LITERALLY no reason to believe the McGahn subpoena means anything other than someone he knows was investigated.

— emptywheel (@emptywheel) June 13, 2021

For those who asked WHY they would subpoena McGahn’s records–because they didn’t know it was McGahn!!!!

They were trying to figure out who someone spoke with. Turns out the person speaks to McGahn’s wife more than him, probably.

— emptywheel (@emptywheel) June 13, 2021

And more from Kerr here:

To make a long ECPA short, subpoenas are largely unregulated but can’t (in the Internet context) get the govt much. An account name, IP addresses it was assigned, not much else. /1

— Orin Kerr (@OrinKerr) June 13, 2021

But 2703(d) orders are more like warrants: a judge needs to sign off on it and its showing of cause. And it can get all non-content transactional records of the account, like who you contacted and when. /2

— Orin Kerr (@OrinKerr) June 13, 2021

If you’re an investigator and you want to know who a suspect communicated with, a 2703(d) order tells you that for that account; a subpoena doesn’t. Pretty big difference. /3

— Orin Kerr (@OrinKerr) June 13, 2021

If DOJ only got a subpoena for X, that plausibly means someone else was the suspect (the subject of a 2703d order), revealing contacts with X’s account, and then a subpoena just to see who X is. /4

— Orin Kerr (@OrinKerr) June 13, 2021

But if DOJ got a 2703d order for X’s account, it plausibly means X was a suspect and DOJ went to a judge and made the case for why there may be evidence in X’s contacts. /5

— Orin Kerr (@OrinKerr) June 13, 2021

Media accounts tend to assume that DOJ issuing a subpoena for X’s records means X was a suspect. But if it’s just a subpoena, not a 2703(d) order, that may not be the case. /end

— Orin Kerr (@OrinKerr) June 13, 2021

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