The ‘spying’ that wasn’t: Adam Schiff and Don McGahn DOJ subpoena stories are falling apart

Reports that the Department of Justice under the Trump administration secretly subpoenaed information on former White House counsel Don McGahn and Democratic Rep. Adam Schiff seem to be falling apart at the seams as no real spying allegedly took place.

A New York Times story written by Michael Schmidt and Charlie Savage reported that the “DOJ secretly subpoenaed Apple for personal info” on McGahn “and his wife in Feb ’18” and then “barred Apple from telling them” about the reported move during that time period under a non-disclosure agreement. But the devil appears to be in the details here and this may not be the breaking story that the media is apparently running with.

Schmidt tweeted: “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.”

A clarifying and interesting tweet was then issued by Savage: “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.” If McGahn was not “intentionally” targeted then the whole story is evidently not what it was purported to be.

The accusations do not go into detail about the DOJ’s investigation. It is unknown what federal investigators were looking into, or even if McGahn himself was their primary focus or whether it was someone he had contact with. Apple reportedly did not inform McGahn what they had turned over to the DOJ.

The report did state that Apple received the McGahn subpoena weeks after another subpoena was issued that was connected to leaks and the Russia probe. That subpoena involved records belonging to California Democratic Reps. Adam Schiff and Eric Swalwell. Again, the subpoenas were ostensibly an attempt to identify individuals who leaked classified national security information during Trump’s administration and were not specifically targeting Schiff. They also included media sources.

Also of significance is the fact that Schiff has previously argued that Congress can secretly subpoena citizen phone records.

“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,” a tweet by @pwnallthethings read.

It now appears that may be the case in this instance of so-called “spying.”

Law professor Orin Kerr shed some light on the issue: “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.”

He continued: “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.”

“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,” he then added.

The New York Times reporters arguably should be more specific when they use the term “subpoenas” and further state exactly what action was taken in regards to both McGhan and Schiff. It is being posited that the records subpoenaed dealt with call records and perhaps not even that. There is, as of yet, no proof whatsoever that either McGhan or Schiff were personally targeted and investigated. It could have been related to anyone they knew since the subpoenas were allegedly overly broad in scope.

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