The House Intelligence Committee’s draft report on impeachment against President Donald Trump revealed an interesting series of phone calls between the president’s personal attorney Rudy Giuliani and various White House phone numbers on key dates germane to the delayed Ukraine military aid scandal.
On April 24, the day former ambassador Marie Yovanovitch was fired, Giuliani made several calls to–and received several calls from–the White House, the Office of Management and Budget (OMB), indicted associate Lev Parnas and someone only identified as “-1”.
Wow. These are Rudy Giuliani’s phone calls the day Marie Yovanovitch was removed from her post.
— Christina Wilkie (@christinawilkie) December 3, 2019
Another call-heavy day for Giuliani occurred on August 8–the day after U.S. Special Representative for Ukraine Kurt Volker attempted to secure a date for Ukrainian President Volodymyr Zelensky to visit the White House. Several messages and phone calls ricocheted back-and-forth between Giuliani, the White House and OMB.
Giuliani had, by this time, developed a shadow foreign policy pipeline in a bid to aid the business interests of his since-indicted associates Lev Parnas and Igor Fruman–and to entice the Ukrainian president into delivering a statement which U.S. ambassador to the E.U. Gordon Sondland recently testified was a “quid pro quo.”
Presidential defenders called foul on the revelations.
— Tom Fitton (@TomFitton) December 3, 2019
The “somehow” of course, was that impeachment investigators on the Hill subpoenaed and received those records from AT&T (as the screenshot in the Christina Wilkie tweet makes clear.) But what, exactly, was the legal basis for enforcing that subpoena?
UC Berkeley Law Professor Orin Kerr believes he’s found the answer.
The law on point here is the Stored Communications Act (SCA) contained at 18 U.S.C. § 2703. A privacy law passed in 1986.
Kerr cited the following language as a relevant section for discussion:
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the—
(C) local and long distance telephone connection records, or records of session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).
The first paragraph of the statute holds that a “governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described [in the federal or state rules]…”
“The have subpoena power, of course,” Kerr notes. “But the SCA, 18 U.S.C. 2703, only allows certain subpoenas to be used to get call records. Do congressional subpoenas count?”
The issue here is that the SCA limits a governmental entity from enforcing subpoenas–which Kerr later refers to as “special subpoenas”–unless those subpoenas are authorized by certain statutes or grand jury proceedings. It doesn’t appear to be the case that any specific laws give Congress the power to sidestep this requirement. But it turns out that’s not too important.
Why? Because the term “governmental entity” isn’t just a vague catch-all for the government–but rather a term of art.
18 U.S.C. 2703 only requires special subpoenas, and 2702 only limits disclosure of non-content records, for disclosure to “government entities,” which 18 U.S.C. 2711(4) defines as ” a department or agency of the United States or any State or political subdivision thereof.” 18 U.S.C. 6 then defines department or agency in a way that normally excludes the legislative branch.
Here’s the key definition:
The term “department” means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.
The term “agency” includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.
“That means that Congress likely isn’t a ‘government entity,’ and the limits of the SCA don’t apply to a congressional subpoena,” Kerr concluded.
Attorney John Gaffney analogized the situation to a private party’s relatively easy access to call logs in civil lawsuits.
“Don’t know why a congressional subpoena would differ from a civil subpoena,” he wrote in response to Kerr. “As long as they know his mobile number, my experience is that a party in civil litigation can subpoena the carrier for call records from that number.”
Of course, subpoenas in civil lawsuits aren’t subject to the same sort of oversight and restrictions the SCA demands of the government. That’s the result of policy concerns which aim to protect citizens from government overreach. In regard to issued subpoenas, it appears the U.S. Congress functions more like a semi-private litigant.
[image via ANGELA WEISS/AFP via Getty Images]