00:00I did not testify that members of Congress were targets of our investigation.
00:05I did answer questions about toll records, and each question I was asked, I answered truthfully.
00:12You testified under oath that the information you sought for many of your targets, including members of Congress,
00:22you sought only toll records. Is that correct?
00:27I did not testify that members of Congress were targets of our investigation.
00:32I did answer questions about toll records, and each question I was asked, I answered truthfully.
00:39Okay. But your statement was to the effect that for the records that you requested as to cell phones of
00:49members of Congress,
00:50you were seeking only toll records. Did you not?
00:54No.
00:55Did you seek more than toll records from members of Congress?
01:00The records that we sought were the toll records subpoenas that we talked about.
01:05There was also, previous to my time as special counsel, a search warrant executed on the telephone of a member
01:13of Congress,
01:14Congressman Scott Perry.
01:15In addition to that, we did request records from the National Archives, another executive agency, regarding White House phones.
01:26I understand that those White House phones ended up having...
01:31Right. Incidental communications involving some members of Congress. Yeah, I get that.
01:36By the way, when you use the term toll records, just define for us what you mean.
01:42My understanding of what a toll record gives you is who placed a call, who the call was to, and
01:52the duration of the call.
01:54That's my understanding of the primary information you get from a toll record subpoena.
01:59It does not include, for example, the content of the call.
02:04Okay. Now, in December of 2022, you and your team sent preservation requests to Apple.
02:15These are preservation requests that went not to the telecom providers, not to T-Mobile, Verizon, AT&T, but rather
02:23to Apple,
02:24demanding that Apple preserve the entire contents of targeted phones, everything contained on the targeted phone,
02:33on the targeted Apple ID, which would include all devices attached to that Apple ID account.
02:40This could include information, naturally would, in some circumstances that would cover not just the days, weeks, or months in
02:48question,
02:50but many years, perhaps a decade or more of information.
02:54You specifically directed you and your team, ordered Apple not to disclose the request and to contact you and your
03:03team first
03:04if the users were about to be alerted. Is that correct?
03:10I don't have a recollection of specific requests.
03:16I can say, though, just to be clear.
03:18I'm going to hand you two copies of these requests.
03:22One in December of 2022 and another one in March of 2023, extending the time frame and asking for an
03:31additional 90 days of that information.
03:33And what I wanted to make clear, Senator, is that a preservation request gives a prosecutor no information whatsoever.
03:40No, I get that.
03:41It just leaves open the possibility for a request in the future.
03:43Yes, yes.
03:45Now, so with these preservation requests, you cover a lot more than toll records in the preservation request.
03:55And the preservation request requests basically everything on that phone or on that Apple ID.
04:01Sweeping.
04:03One question I've got for you is why make such a broad preservation request if you intended only to seek
04:11toll records?
04:13Do you want me to take the time and read these records now or do you want me to tell
04:17you how I understand this works?
04:18Well, tell me how you understand it works.
04:21The part of it that I'm most interested in, I believe, appears on the second page of both the December
04:2622 letter and the March of 23 letter.
04:29It basically just says, send us everything, all documents and all, you know, data on the phone in question.
04:36So but tell me why it is that you make such a broad preservation request if you did not intend
04:42to get anything beyond toll records.
04:44Not having seen these in some time, my understanding is that preservation requests are by their nature broad because when
04:52you're early in an investigation, you don't know what will be relevant later on.
04:56Again, my my understanding generally as a prosecutor for a number of years is these preservation requests are pretty boilerplate
05:05in the sense that prosecutors request kind of the same information, a broad array of information to be to be
05:13preserved.
05:14Understood.
05:15In any in any case.
05:16I get that.
05:18And and and yet these these preservation requests signed by members of your team asked them not to disclose anything
05:30about this.
05:33I want to get back for a moment to subpoenas that actually were issued and then I'll circle back to
05:42the gag orders in a moment.
05:45The speech and debate clause of article one, section six, clause one should factor in to some of these insofar
05:55as you are you and your team are looking into communications of individual members, officers of a coordinate branch of
06:05government.
06:05Here, the legislative branch, members of the House and of the Senate, and it's there to give them a type
06:12of privilege as to their internal deliberative processes involving their legislative actions.
06:19Um, including things like Congress's obligation to open and count electoral votes.
06:25Um, now on this and and matters broadly, the Department of Justice's own public integrity section, it did give you
06:34explicit warnings that going after the phone records of members of the legislative branch carried what they refer to as
06:43litigation risks due to these constitutional privileges.
06:47And yet with your express approval, your approval, your office issued 44 subpoenas that were wrapped in very strict gag
06:56orders, at least 19 of those targets were in fact officers of a coordinate branch of government that that is
07:03the legislative branch.
07:04Now, Chief Judge Boasberg of the U.S. District Court of the U.S. District Court of the U.S.
07:09District Court of the District of Columbia signed those gag orders, but as you admitted on page 42 of your
07:14deposition before the House Judiciary Committee, you never actually told Chief Judge Boasberg that you were targeting 19 members of
07:24a coordinate branch of government, the legislative branch.
07:26Is that right?
07:29Uh, are we speaking about the toll records?
07:32No.
07:33Yeah, we're talking about the subpoenas that were signed by Chief Judge Boasberg involving the toll records.
07:38Yes.
07:39I think Judge Boasberg didn't sign the subpoenas.
07:42I think he signed off on the nondisclosure order that went with the subpoenas.
07:46But you are correct in that my recollection is that, uh, pursuant to department policy, we did not share with
07:53him, uh, who the underlying toll records, um, were for at that time.
07:59I think that's correct.
08:00Okay.
08:00Now, this highlights and underscores something that my friend and colleague, uh, uh, Senator Coons, um, uh, reference.
08:09Uh, he and I have a bill, a bipartisan bill called the MDO Fairness Act.
08:13It seeks to guarantee, as the name implies, fairness and nondisclosure orders issued by courts.
08:20There should be an articulated basis for secrecy when you're asking for a gag order.
08:26Now, that, that bill has been passed unanimously by the House of Representatives.
08:30The Senate has yes to pass it.
08:32The Senate needs to pass it.
08:33It must pass it.
08:34But even without that passive, obviously it's not law now and it wasn't law in December of 2022 or 2023
08:41or any, any point.
08:45But still the speech or debate clause of Article 1, Section 6 was intact and has been since 1789 when
08:53the Constitution was ratified.
08:55Shouldn't that play some role here?
08:57And doesn't that, uh, shouldn't that have, um, uh, been more carefully considered as you were seeking these records involving
09:08members of a coordinate branch of government, the legislative branch, when you were seeking these, uh, these documents?
09:16Uh, when we requested the toll records subpoenas, uh, I had staff who were familiar with the speech or debate
09:24clause.
09:24They, uh, uh, litigated issues related to it.
09:27Uh, we also, I made it a condition of getting these subpoenas that the public integrity section, which is familiar
09:33with these issues, be consulted.
09:35Uh, my recollection is that they approved of the subpoenas and, um, as a result of that, that is why
09:44we sought the subpoenas.
09:45So, in my view, uh, we did consider these issues with respect to the bill you mentioned.
09:50I'm not familiar with that.
09:52As a prosecutor, my job is to follow the law and department regulations as they exist.
09:57I get it.
09:59My point is to make the case for this, but I want to make sure that I understand.
10:02Do you define toll records to include geolocation data?
10:09I would have to look at the subpoena.
10:11My, my, uh, understanding of what was most relevant to us would be the, uh, to and from and duration.
10:21Uh, I haven't looked at one of those subpoenas in a long time.
10:24Again, like the, um, preservation requests, I think the, the, uh, information requested is pretty standard in those subpoenas.
10:34Um, I'm just not, I don't recall, as I sit here, whether there were other things.
10:37What I focused on was the to from and left.
10:41I get it, and I'm, I'm, I'm out of time.
10:43Uh, my, my point is this.
10:44Even without that bill and DO fairness becoming law, it's not yet law, it needs to become law.
10:50There still were all kinds of limitations, even separate and apart from the speech or debate clause.
10:55Uh, uh, uh, a Supreme Court precedent involving, uh, Jones, Carpenter, more recently, Chowtri,
11:03recognizes that, uh, the Fourth Amendment, especially insofar as you're seeking things like geolocation data,
11:09you can get such an exquisite view into someone's life by tracking them.
11:16That the, the, uh, if, when you request it this way with new technology, that implicates the Fourth Amendment in
11:23a very direct way.
11:24In a very direct way that often requires compliance, not only with the Fourth Amendment's, uh, uh, probable cause requirement,
11:32but also with the particularity requirement.
11:35The American Revolution was fought and won because of the flagrant abuse by the Crown and Parliament,
11:41uh, of those privacy protections, which, uh, have their origins in many centuries of, uh, Anglo-American legal precedent and
11:50tradition,
11:51prior to the American Revolution, prior to the Constitution.
11:54You trampled none of those, sir.
11:56And you did so in a way that arguably makes what Richard Nixon did in Watergate look like a Sunday
12:02picnic.
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