Can Congress get your phone records? Jan. 6 lawsuits aim to find out
Decisions could affect congressional probes
WASHINGTON – Can Congress get your phone records?
The question is at the heart of a dozen federal lawsuits against the House committee investigating the attack on the Capitol on Jan. 6, 2021.
Decisions in those cases could affect not just the Jan. 6 probe but congressional investigations for years or even decades to come.
For the Capitol riot panel, phone records could help the committee understand who talked to whom during the attack – essentially filling in who knew what when.
Many litigants say giving investigators their records would violate their privacy, infringe on attorney-client communication or hurt them in related criminal cases.
The committee disagrees, saying it only wants to know who spoke to whom and for how long, not the contents of any calls, emails or texts.
“For those people who are trying to keep the phone records in particular out of the hands of the committee, that’s probably the strongest legal argument that they have,” said Michael Stern, a former House senior counsel.
The heart of the lawsuits
Litigants over the phone records range from former aides to President Donald Trump such as Stephen Miller to defendants charged with crimes in the Capitol riot such as Kelly Meggs to election lawyers such as Cleta Mitchell.
Ambiguities in the 1986 Stored Communications Act are at the heart of the matter.
“There’s nothing in the statute that talks about Congress,” Stern said. “I think (Congress) will probably win, but it’s not an issue that’s ever come up in court.”
In 2017, the Senate Intelligence Committee used the law to get data on millions of social media interactions voluntarily from Facebook, Google and Twitter during the investigation of Russian interference in the 2016 election. In 2019, the House Intelligence Committee subpoenaed phone records as part of Trump’s first impeachment.
Unlike those cases, some subpoena recipients now are fighting back.
“We have no record of the procedural or political constraints on congressional surveillance,” Aaron Cooper, a former Senate investigative counsel and former Justice Department prosecutor, wrote in the American University Law Review. “And there is little scrutiny of congressional surveillance as a tool within the separation of powers.”
The Stored Communications Act says phone companies such as Verizon, AT&T and T-Mobile “shall not” divulge records they hold in storage. The statute prohibits the companies from releasing information about their subscribers to “any government entity.”
Exceptions are provided for a warrant in a criminal investigation or for an administrative subpoena. The distinction is that restrictions were applied to criminal investigations by the executive branch, but Congress can’t do criminal investigations, so Congress can’t use that exception.
Trump lawyer John Eastman, who has a lawsuit pending over phone records, argued the committee doesn’t qualify as a “government entity” and shouldn’t get records even with a warrant.
In his suit, Miller argued Congress could have changed the law if it wanted access to phone records.
“It is not as though Congress was unaware of the need to include itself in the definition of a criminal statute if it wanted the definition to apply to itself,” Miller’s lawsuit said.
Cooper said the Stored Communications Act specifically excluded Congress from restrictions by defining a “governmental entity” as a federal or state department or agency.