“Target:” A Vocabulary Lesson for Adam Schiff

Most of the people in top DOJ positions under Trump have issued statements claiming they did not know of any subpoena “targeting” Adam Schiff.

Billy Barr told Politico that “while he was Attorney General,” he was not aware of any congressperson’s records, “being sought” “in a leak case.”

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

Trump “was not aware of who we were looking at in any of the cases,” Barr said. “I never discussed the leak cases with Trump. He didn’t really ask me any of the specifics.”

That in no way serves as a denial that he’s aware of the previously collected congressperson’s records being used in an investigation, possibly one not defined as a leak case. Given that the records in question were collected over a year before he became Attorney General, it is, frankly, not a denial in the least.

WaPo includes purported denials from all three potential Attorneys General.

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.

Barr says he does not remember being informed of “subpoenas for lawmakers’ data.” Jeff Sessions, who may have been recused from the investigation in question (though I’m virtually certain the recusal is not as broad as it is being treated), says “he did not recall approving a subpoena for lawmakers’ leak data.” And Rod Rosenstein, the leak hawk who served as Attorney General for Russia related investigations, says “he did not recall hearing about the subpoena” until it was just revealed.

Every single one of these denials is premised on this being a subpoena for Members of Congress. These denials are denials about targeting Members of Congress.

But Apple’s description of what happened makes it virtually certain none of these denials are relevant to the subpoena in question.

On Feb. 6, 2018, Apple received a grand jury subpoena for the names and phone records connected to 109 email addresses and phone numbers. It was one of the more than 250 data requests that the company received on average from U.S. law enforcement each week at the time. An Apple paralegal complied and provided the information.


Without knowing it, Apple said, it had handed over the data of congressional staff members, their families and at least two members of Congress, including Representative Adam B. Schiff of California, then the House Intelligence Committee’s top Democrat and now its chairman. It turned out the subpoena was part of a wide-ranging investigation by the Trump administration into leaks of classified information.

Apple was asked for the names and toll records connected with 109 accounts. That means that investigators didn’t know — or could claim not to know — whose records they were collecting, and didn’t discover until they got the subpoena returns that Adam Schiff, Eric Swalwell, and a child with no conceivable access to classified information had been included. Chances are good that none of these people were the target. Chances are good that a staffer was the target — perhaps the one for whose records Microsoft was subpoenaed in 2017. This sounds like a Community of Interest subpoena — something that gets the calling circle of a target. It was a key part of Stellar Wind and the phone dragnet that Adam Schiff championed over and over again, a request that shows (in this case) two hops removed from a target to figure out whom he called and whom those people called.

The danger of using such requests in leak investigations has been known since a 2010 IG Report revealed that a journalist’s records had been collected as part of a community of interest grand jury subpoena. One plausible explanation for what happened in that instance is that the government targeted a known source for Stellar Wind — perhaps Thomas Tamm — knowing full well that one of the journalists on the story had been in contact with him. By getting two hops of records, though, the known contact with the journalist would (and did) return all the journalists’ contacts as well. The journalist in that case wasn’t the “target” but he may as well have been.

Still, as the phone dragnet championed by Adam Schiff reveals, the government never gave up their interest in such two-hop subpoenas.

All of the descriptions of what happened are consistent with this explanation. It would explain why:

  • Apple didn’t know the identity of the account holders but returned both the identity and the call records in response to the subpoena
  • Apple is now limiting the number of records they’ll return with one subpoena
  • Sessions, Rosenstein, and Barr are all denying knowing that Members of Congress were “targeted”

What it doesn’t explain — though no one has been asked to explain — whether investigators on this case alerted their superiors that they had ended up subpoenaing Adam Schiff’s records, whether or not they [claim they] intended to. Oops, boss, I just subpoenaed the Ranking Member of HPSCI, what do I do now?

In the case of the journalist whose records were seized in a community of interest subpoena in 2006, after it was discovered the FBI sealed the records and they were purged from at least some of the FBI’s investigative databases. That’s what should have happened after a prosecutor discovered they had obtained a Member of Congress’ call records unintentionally: the records should have been sealed.

But by description, that didn’t happen here. Barr never denied having focused on Members of Congress when he resuscitated his investigation in 2020 (nor has he said for sure that it remained a “leak” investigation rather than a “why does this person hate Trump” investigation, like so many others of his investigations. Barr denied telling Trump about it. But he didn’t deny that Members of Congress were investigated in 2020.

That’s why Adam Schiff’s reassurances that Section 702 of FISA doesn’t “target” Americans have always been meaningless. Because once FBI ingests the records, they can go back to those records years later, in an entirely different investigation. And no one has denied such a thing happened here.

Update: Fixed the description of Barr’s denial to WaPo.

21 replies
  1. milton wiltmellow says:

    “did not recall” = “mostly sure any evidence to the contrary is well hidden or destroyed.”

  2. BobCon says:

    So because I’m slow, the issues are whether Barr, Rosenstein et al:

    — knew after the subpoena hit that Schiff, Swalwell, etc. had their data included

    — knew that the subpoena for the direct target was likely to include them as collateral

    — intended to get their data as collateral

    Is that right, or is there anything else?

      • dwfreeman says:

        Nobody in DoJ leadership with the authority or likely position to know about these alleged leak investigation subpoenas knows or can recall a thing about them.

        But they all knew how to bury them in gag orders set to expire only well after they were out of office, leaving field and career help to answer for them. If you’re gonna lie and cheat, you’re first requirement is creating plausible deniability.

        First of all, the Trump administration leaked like a sieve. Tales from its colander crypt keepers and accountability avoidance was seemingly job one while in total compliance in protecting the liar in chief.

        We had an acting DHS chief, Chad Wolf, more than six months past due in office who was in the Middle East on insurrection day. Less than a week after he resigned because of alleged concern over his illegal temp service as the federal actor in charge.

        This, of course, after Wolf helped assemble an avalanche of Capitol security for a Trump clearance showdown in Lafayette Square and justified illegal off campus street arrests in Portland as part of federal courthouse protection, all in name of Trump’s thin blue line of sunshine patriotism.

        Trump knows all about being a federal confidential informant to aid and abet his Russian-tinged criminal enterprise. Under his admin, everyone in his protection racket remain under non-disclosure agreement, until they aren’t.

        This is particularly true when it comes to his minions in charge on Jan. 6. Nobody in line of authority that day had direct supervision of Capitol security, either by predesign or lapse of duty, a residue of intentional coincidence to avert responsibility assuring plausible deniability.

    • Adrienne says:

      That’s ridiculous. At best IF the post above is correct then Schiff and Swalwell were essentially “unmasked” because they, their staffers and their family members were all in contact with someone being watched by the DOJ (unlikely, to say the least). The right wing has been (unjustifiably) ranting and raving about “unmasking” for years now, trying to whip up their base over this supposed terrible injustice (which it’s not). So is “unmasking” now okay in your book?

      Worst case scenario then the Trump admin seriously abused their powers. If you think it’s okay for Trump to do it then I’m sure you won’t have any problems if the Biden admin secretly subpoenas phone and other records of Trump, Trump’s kids, people who work(ed) for his campaign, donated to his campaign, (maybe even you!) etc., and then issues gag orders so no one knows it even happened until years later.

      Are you okay with it if your own right to privacy no longer exists, and the Biden admin is secretly watching everything you do? Would you say “well that’s okay, that’s fair”?

  3. earlofhuntingdon says:

    In 1970s speak, Barr, Sessions and Rosenstein issued garden variety non-denial denials. Seeming to address an issue, their denials skirt it, thus saying nothing about it. The technique is beloved by those hoping to avoid falling on their sword for a superior or committing perjury.

    • John Lehman says:

      Being evasive without seeming evasive.

      The convoluted genuflections do leave a lingering stench in the room though.

      Oh the psychology of criminal minds.

      • Leoghann says:

        Since the Iran-Contra hearings, the phrase “I do not recall” has a stench all its own.

  4. Marinela says:

    It appears the wording of “sought out” implies that Adam S. was not the target, but was called by the target.
    In this case, DOJ subpoena was via a grand jury, not from a judge.
    The timeframe for the records is before 2017, when the actual leak being investigated occurred.

    Is this correct understanding?

      • graham firchlis says:

        Fair question, perhaps answered elsewhere, but if not….

        For a federal grand jury, no. The authority of the court is vested in the jury. They can issue subpoenas on thier own authority, for any reason or none at all. Awesome power, not to be treated lightly.

        Prosecuters can issue subpoenas on thier own in the grand jury’s name, and bizarrely they can do so and keep it secret from the jury and the supervising judge.

        A point of continuing contention between my jury and the AUSAs. We were not their dream jury.

  5. subtropolis says:

    If it was a ‘community of interest’ subpoena, that still leaves unanswered the question of how the members of this cohort were identified. Where did these phone numbers and email addresses come from?

    I can imagine the situation where a list was prepared of all of the contacts with a journalist. The problem there is that it would suggest that /everyone/ had been leaking to that journalist, which hardly seems realistic. (That the minor was swept up is not so bizarre, as their parent could easily have borrowed the phone.)

    What am I missing? Somebody had to have collected a list of email addresses and phone numbers in order to request the metadata from Apple. That it was unknown to whom they belonged seems a stretch.

  6. The Old Redneck says:

    Thanks for bringing some clarity to this. Assuming a staffer was the target, can anyone really claim to be surprised that the staffer was in touch with (1) the congress member they worked for, (2) other congress members or their staff, and (3) journalists? That’s what it will come down to in this scenario.

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