Republican Complaints about Phone Records Back Democratic Impeachment Case

Way back in 2001, Victoria Toensing wrote an article justifying the subpoena of phone records of her future client, John Solomon, to find out who leaked details to him that Democratic Senator Robert Torricelli had been picked up on a wiretap of a mob figure. In it, she justified serving limited subpoenas, approved by Robert Mueller, on a third party carrier to find out who had committed a crime. She emphasized there was nothing political about the subpoena of Solomon’s phone records.

By ensuring that journalists not be subpoenaed every time they possess evidence, the department was demonstrating its respect for the press’s constitutional role.

The guidelines set down specific conditions that must be met before a subpoena can be issued for a reporter’s telephone records: There must be reasonable grounds to believe a crime has been committed; the information sought must be essential to a successful investigation; the subpoena must be narrowly drawn; all reasonable alternative steps must have been pursued, and the attorney general must approve the decision. The department has 90 days to notify the reporter of a subpoena to a third party, such as a telephone company.

Were those conditions met in Solomon’s case? Clearly, yes. His articles state that wiretap information was disclosed. The subpoena was limited, asking for home phone records for a period of six days, May 2 through 7. The U.S. attorney, Mary Jo White, certified that all alternative steps had been taken. Then-Acting Deputy Attorney General Robert S. Mueller III (now the FBI director) approved the subpoena — Ashcroft having recused himself. Solomon received his timely notice.

There is one other guideline factor: whether negotiations are required with the reporter before a subpoena is issued. The AP has argued — incorrectly — that the guidelines were violated because there were no negotiations. But negotiations are mandated only when the subpoena goes directly “to the reporter.” The guidelines do not require them if the subpoena is to a third party and the department concludes negotiations might be detrimental to the investigation.

Eighteen years later, Toensing is outraged that her own phone records were collected by the constitutionally appropriate authority in the investigation of multiple crimes.

A table of the April call records described in the report suggests the subpoena apparently targeted Lev Parnas — someone already indicted for crimes related to this investigation — and Rudy Giuliani — who’s a subject of that same investigation. (h/t Kelly for the table)

Nevertheless, in addition to Toensing and Solomon, the subpoena obtained records showing calls with Devin Nunes, several of the staffers most involved in sowing conspiracy theories, and numbers believed to involve the President (who is the subject of this investigation).

Nunes, of course, has made several efforts in recent years to expand the government’s collection of metadata in national security investigations, which this is. Trump also has favored continued, aggressive use of metadata collection in national security contexts.

The apparent fact that Schiff obtained all these records by targeting two suspected criminals hasn’t comforted the GOP, which is trying to claim that he violated the law or norms in issuing a subpoena.

One particularly delectable version of such complaints comes from Byron York. For some inconceivable reason, York decided to contact John Yoo — who, on multiple occasions in the year after Toensing wrote her column justifying a subpoena, wrote legal memos authorizing efforts to collect all phone records in the US with no legal process. York asked Yoo about whether subpoenaing AT&T for the phone records of two people as part of an impeachment investigation was proper.

John Yoo expressed a heretofore unknown respect for privacy. Even while he admitted that this presents no attorney-client problems, he suggested it would be proper for the White House to try to pre-empt any such subpoena.

There is certainly a constitutional privacy issue here, but I don’t think an attorney-client privilege issue. The attorney-client privilege covers the substance of the communication, but it doesn’t protect the fact that a communication took place.

For example, when one party to a lawsuit has to hand over documents to the other party, it can redact the content of the document if it is attorney-client privileged or withhold the document itself, but not the fact of the document’s existence (there is usually a log created that sets out the from, to, date information, etc.).

That is a separate question from whether Giuliani and Nunes had any constitutional rights violated by the House when it obtained these records. I am surprised that Giuliani and the White House did not think this would come up and sue their telecom providers to prevent them from obeying any demands from the House for their calling records.

York then quotes a policy from Reporters Committee for Freedom of the Press that shows this subpoena — which did not target Solomon — does not fall under RCFP’s stated concern for subpoenas used to find out a journalist’s sources.

Courts…have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.

The subpoena didn’t discover Solomon’s sources; it just demonstrated Parnas and Rudy’s outlets.

Most remarkable of all, York quotes Rudy providing direct evidence supporting impeachment.

Schiff, Pelosi, Nadler have trashed the U.S. Constitution and are enabled by a pathetic fawning press. They have proceeded without respect for attorney-client privilege, including threats of contempt and imprisonment.

Here’s the thing. Either Rudy Giuliani was acting as a person the President appointed to pursue the foreign policy of the United States — something Republicans have, at times, argued in their attempts to defend the President.

Or, Rudy was acting as the President’s personal lawyer. Here, he asserts he was acting as the President’s lawyer. If that’s the case — and Rudy says it was — it confirms a key allegation made by Democrats: that Trump demanded concessions from Ukraine purely for his own personal benefit.

As Yoo notes, Rudy (and Jay Sekulow and Toensing) would not have an attorney-client claim over metadata in any case. But Rudy nevertheless claims Trump’s privilege has been implicated in these call records.

With that claim, he confirms that his client violated his oath of office.

59 replies
  1. Jenny says:

    Excellent. “With that claim, he confirms that his client violated his oath of office.” Thank you Marcy.

    • Cathy says:

      Yep. Dumped straight into photo-Rudy’s lap – no, wait. Sorry, my mistake. That’s obviously photo-Rudy finally realizing the high cost of attempted relevance.

  2. Mitch Neher says:

    They think they own the place. Therefore, they think it’s always different when they do it than when somebody else does it. And it really doesn’t matter at all to them to what the pronoun “it” refers. Anything they do is different when they do it–because they supposedly own the place.

      • P J Evans says:

        “Power tends to corrupt. Absolute power tends to corrupt absolutely.” – Sir J E E Dalberg, first Baron Acton

          • vicks says:

            Yes, and despite all signs pointing to extinction; rather than evolving, the old white dinosaurs, (led by THE ORANGE ONE) have decided to fight to the death to retain their old ways.
            Our planet, the economy, and even the big guy up above will not support the lying cheating and pillaging strategies being used to cling to power, and the youth of the republican party need to wake the f up and take a real look at the mess being left in the wake of this current generation of panicked leaders.

  3. Charles says:

    Claims of privilege seem to be Trump’s signature move for the activity being illegal. The double privilege being claimed by Rudy Giuliani–attorney client privilege plus Executive privilege for dodgy diplomacy–suggests that Ukraine was double illegal.

  4. earlofhuntingdon says:

    John Yoo expressed a heretofore unknown respect for privacy. Even while he admitted that this presents no attorney-client problems, he suggested it would be proper for the White House to try to pre-empt any such subpoena.

    Yoo is an overambitious bureaucrat who will support whatever argument or conduct his authoritarian master wants. He will misquote whatever precedent he needs to in order to make that happen.

      • Raven Eye says:

        Another chickenhawk.

        Secure that guy to a chair and just show him a wet handkerchief. The handkerchief wouldn’t be the only wet fabric in the room…And the singing would begin.

      • Hv says:

        Read yesterday’s NYT article about the horrific torture one suspected Al Qaeda fighter endured. How do Yoo sleep at night, bastard?

  5. RacerX says:

    A logical checkmate. These idiots just can’t stop incriminating themselves via interviews, tweets, and public statements.

  6. Buford says:

    Is this one of those, “so what are you gonna do about it” statements? It looks like this is their standard defense…

  7. Former AUSA says:

    MW – the fact of a call is not normally privileged. Even the subject of the call is not generally covered by the attorney-client privilege. Only the substance is. There is normally no privilege claim whatsoever in obtaining phone records from third parties.

  8. Arj says:

    But could the Rude somehow claim to be acting in both roles simultaneously? It’s kinda obvious which, but hypo-pathetically… Shamelessness doesn’t appear to be a limiting factor here.

    • bmaz says:

      Is that Rudy? Can we please use names of individuals that are clear instead of stupid slurs? Thank you. This is a relentlessly tiring fundamental request.

        • Cathy says:

          I’m partial to “photo-Rudy,” but that tends to work only when the bloggers post one of those _on point_ photos of him at the top of a thread. And no one has taken me up on speculating what high cost photo-Rudy is contemplating in this thread, but I console myself with the thought that it is nevertheless squelching around in the reader’s subconscious. Maybe it’s better that way.

          Devindence. heh. It’s relevance just refuses to lie down and die:

          “Nevertheless, in addition to Toensing and Solomon, the subpoena obtained records showing calls with Devin Nunes, several of the staffers most involved in sowing conspiracy theories, and numbers believed to involve the President (who is the subject of this investigation). [from EW’s graph immediately below Kelly’s table of April call records]”

          • Arj says:

            ‘Photo-Rudy’ has a nice sly ring to it – the more so when he has such an unphotogenic repertoire of facial expressions. He may be thinking that front-row seat was not worth the potential price.

            ‘Devindence’ is evolving: it began as my version of (Nunes’s version of) ‘alternative facts’; now it’s also the kind of facts that threaten to circle round and bite him in the hide. Could really wish the impeachment stampede would wait for the slower members of the herd – still rich pickings there.

  9. John Paul Jones says:

    Slightly OT, but there are reports that Rudy is travelling with a video crew, meaning that campaign ads with quotes from the Three Ukrainian Amigos (the disgraced prosecutors) are going to be coming. Do the networks run them, knowing that they will propagate falsehoods? Are there any grounds under which networks (excluding State-Run Media) could refuse to air?

      • Vinnie Gambone says:

        “When you are explaining, you’re losing.” That was once true back in the Swiftboat days when Karl Rove said it. But now the republicans seem to have an explanation for everything, almost always twisting the facts, but it works with their base. Love it when they intimate it is all one big smear campaign , Smear, Smear,Smhear! (Sorry, just couldn’t help myself. Funniest scene ever)
        The response to it’s a smear campaign should be: there would be nothing to smear with if Trump obeyed the law. EVERYTHING HAPPENING TO TRUMP IS THE RESULT OF HIS SELF INFLICTED WOUNDS. Those are words everybody understands including Trumpsters.

    • Raven Eye says:

      They don’t need to get broadcast by MSM. Once posted on YouTube, Facebook, etc. (even if those social media eventually pull them) they’re in the wind and will get all the exposure they need with their intended audience(s).

      • Vinne Gambone says:

        They wouldn’t be there with the film crew if they did not already have script(s) in hand. Today a special ops Film crew arrived in Kiev. Mission #1-Find dirt on Biden. Mission #2. Scratch Mission #1 Make something up.
        Rudey Scorsese is not in Ukraine to film facts. He is there to film fiction. Is there a mobster or oligarch flunkie in the world that by now does not know the boss will pay big for dirt on the Bidens, real or not? Film of Hunter blowing his nose will suffice.

        Reports are Rudey is considering doing man in the street interviews in downtown Kiev with Parnas’s brother Perv doing the translating. “Ekcuse me Mamm, what can you tell me of the Biden scandals? No Mamm, not sandals, scandals.”

        Don’t be surprised when Rudie’s crew finds the 400 pound Ukrainian person living in his mother’s basement who hacked the DNC servers. Now it makes sense why Congressman Knewness went over there.
        Congressmen Knewness promised Mr. 400 one cow a month for the rest of his life. Mr 400 believed the cow the Congressman brought with him was actually from America because it had no aversion whatsoever to bullshit. Now that we have the phone call records it’s only a matter of time before Soundland goes before the cameras again to say. “If the question is, “Was there Quid Pro Moo? The answer is Yes. There was quid pro moo. Congressman Knewness would provide a cow a month for life in exchange for the footage Mr. 400 has of Hunter Biden not washing his hands in the bathroom at Burisma HQ.

        Everyone was in the loop, Including Congressman Knewness. Apparently Mr. 400 is going to tell Rudey, like he told Mr. Knewness, Hunter Biden’s father had the janitor who saw his kid not wash his hands fired. Film at eleven.

  10. Manwen says:

    The apparent fact that Schiff obtained all these records by targeting two suspected criminals hasn’t comforted the GOP, which is trying to claim that he violated the law or norms in issuing a subpoena.

    Do we know that HSCI issued the subpoena? At the press conference following the release, Schiff replied to a question saying he would not reveal how he obtained the information. I was thinking he got it from SDNY. I think Schiff has enough respect for SDNY being a former prosecutor himself, that he would defer to them in the Parnas/Fruman case. And the common records seem to be Parnas and Giuliani, the others seem secondary. When If first saw this list, I thought it probably confirmed to RG that his devices are under surveillance.. I think that is far more likely than Schiff issuing a subpoena through HSCI, which might require a vote from the full committee. And, if I am right, Toensing and di Genova might have wider exposure as well. Time tells.

  11. harpie says:

    Rudy, today:
    1:42 PM – 5 Dec 2019

    Schiffs impeachment is a FARCE because
    1. There was no military aid withheld.
    2. The conversation about corruption in Ukraine was based on compelling evidence of criminal conduct by then VP Biden, in 2016, that has not been resolved and until it is will be a major obstacle… / …to the US assisting Ukraine with its anti-corruption reforms.
    The American people will learn that Biden & other Obama administration officials, contributed to the increased level of corruption in Ukraine between 2014 to 2016.
    This evidence will all be released very soon.

    • harpie says:

      The above two quotes were highlighted here:
      4:08 PM – 5 Dec 2019

      Rudy confessed to the whole crime. He’s clearly stating:
      1) “corruption” was always about Biden.
      2) U.S. policy toward Ukraine *continues to be* conditioned on smearing Biden.
      3) he’s acting as Trump’s lawyer to personally benefit his client; not to serve national interests.

    • P J Evans says:

      Rudy is full of it.
      1. There are multiple witnesses – including people in the Ukrainian government – who have said that the money was withheld.
      2. There is zero evidence that Biden was involved in any criminal actions WRT Ukraine – and there’s a lot of evidence of Rudy’s involvement. (And Manafort, and Barr, and Trmp.)

      • Mitch Neher says:

        Giuliani reportedly said, “This evidence will all be released very soon.”

        In what venue? The long-awaited “counter-report” to The Mueller Report? Surely Giuliani’s Ukrainian fabrications will never be entered into evidence in a United States Court.

        Unless . . . at some point in 2018, The Republican controlled Congress had secretly issued a Letter of Marque to Giuliani, Parnas, Fruman, Toensing, DiGenova and the remainder of their merry band of privateers under the command of Captain Ninny Na-Na Nunes.

        And even then . . . Who does stuff like that anymore?

        • Sonso says:

          Slyman & Shyster will publish the spectacular evidence of Trump & Rudy’s innocence in “If I Did It, Volume 2”, soon to be number 875,421 on the Amazon best-seller list.

        • P J Evans says:

          Trmp is talking about Rudy talking with the PG and Congress (meaning, of course, the GOP-T in Congress). Apparently Rudy was told a lot of lies during his trip.

          via ew’s twitter:
          Dafna Linzer Retweeted Geoff Bennett
          Trump just told reporters Giuliani “came back from someplace and he’s going to make a report I think to the Attorney General and to Congress. He said he has a lot of good information.” Trump then says Rudy “has not told me what he’s found,” but adds “I hear he’s found plenty.”

          • Cathy says:

            Oh my. Wonder if the PG will take the call. Is it difficult for Barr to claim the President didn’t loop him in if the President prefers to give his directives on camera, in route to Marine-1? Is “Congress” code for Nunes? More Devindence? So much inquiry, so little fact.

            • P J Evans says:

              It’s probably more like Rudy sending people to Hawaii about Obama’s birth certificate – we’ve never heard any more about that.
              This one, since everyone he talked to is on the “corrupt” side of the law, that’s the kind of “report” he’ll have.

    • Terry Mroczek says:

      This begs the question (especially since there is evidence now that Guiliani was at it well before President Z took office)
      Why would you ask a government / country who you suspected was corrupt to investigate anything?

      • Mitch Neher says:

        Because they were looking for electioneering fabrications–not admissible evidence.

        (Don’t be upset. It figures that you knew that. I’m just spelling it out.)

  12. Gnome de Plume says:

    One of the former FBI/DOJ bigwigs on MSNBC said the word RICO yesterday. He was referring to the scheme Rudy is apparently running. I was quite surprised he was so explicit. Those guys choose their words carefully.

    • Mitch Neher says:

      Wow! Twelve whole hours without a response from “the moderator” to the forbidden acronym. Woo–hoo!

        • P J Evans says:

          I saw it used the other day in connection to the RC hierarchy. All I said there was that it’s hard to prove.

          • bmaz says:

            Heh, I’ve been splaining this pretty much as long as this blog has existed, so well over twelve years. About three years ago, my friend Ken White did a post at his blog, Popehat, that is very detailed, and pretty funny, going through why it is never the RICO. So, for ease, I have adopted that, and here it is. Oh, and by the way, as an additional point Ken did not really touch on, the general rule is that RICO cannot apply to any federal government activity, especially in the criminal sense. So, bottom line is, it is never RICO and anybody invoking it should be laughed at immediately.

            • P J Evans says:

              I was told by a Usually Unreliable Source that the law was written so it can’t be applied to political parties. (Whether it can be used when a party becomes something closer to a gang of criminals is another question.)

          • Cathy says:

            Thank you @Mitch, for catching bmaz in a mellow mood. I haven’t seen the link to Popehat in a while and it is always a treat.

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