Because “grand jury subpoenas” were used to secure the phone and email records of Democrats Adam Schiff and Eric Swalwell, a federal judge likely played no part in obtaining the communications records sought by the Trump administration’s Department of Justice, according to the attorneys discussing the case on the #SistersInLaw podcast released Saturday.
Taking a deep dive into the news that then-minority leader of the House Intelligence Committee Schiff and member Swalwell had their phone records–as well as those of some aides and family members, including a minor–seized by federal investigators under the guise of a leak investigation, former federal prosecutor Joyce Vance noted that no one outside the Justice Department needed to be consulted about issuing a subpoena to get the records, and in fact, the grand jury itself didn’t play any role in the seizure until after federal prosecutors had the records in hand.
As Vance explains, federal prosecutors can issue a grand jury subpoena on their own, with no instruction to do so from the grand jury and with no review from a judicial officer. “There’s probably procedure in the office for supervisor to review it and make sure that they’re comfortable with that subpoena,” Vance notes commenting, however, that that is not a law.
Only after the information is received is it a requirement that the grand jury be notified about the information and the existence of a subpoena, a procedure Vance called a “grand jury return.”
“Once this leak investigation gets opened, it would have been easy for the prosecutors to obtain the subpoena,” Vance states. “And that’s the big question here: Who knew? What kind of supervisory approval was in place?”
Vance was highly skeptical about the denials from former attorneys general Jefferson Beauregard Sessions III and William Barr that they had no knowledge of the subpoenas.
“It doesn’t pass the smell test at all,” she comments. “What makes me really nervous here is the notion that they’re not looking at everyone who had access to this information. They’re looking only at a handful of Democrats and people who are in their inner circle.”
Vance said that the investigation into the leaks had basically shut down under Session, with no new evidence being uncovered in at least a year, when Barr came into office and assigned former New Jersey US Attorney Craig Carpenito to “resuscitate” the investigation. A known Trump loyalist, Carpentino came into the public spotlight for another Barr attempt to disrupt the Justice Department when Barr named Carpentino to take over the duties of Southern District of New York US Attorney Geoffrey Berman. The problem: Berman had not been fired by Trump or Barr, and it would have been highly unusual for a the New Jersey US Attorney to take over the cases of SDNY while maintaining his post in New Jersey. Plus, Berman’s deputy, Audrey Strauss, would have been the one to succeed Berman as acting US Attorney for SDNY, should he be removed.
Fellow Sister-in-Law host Barbara McQuade noted that the existence of a gag order on the subpoenas is not unusual: most such subpoenas would have a time-constrained gag order attached to prevent the entity being subpoenaed–be it a phone company, a bank, or another third-party–from divulging the existence of the investigation to the target, which could jeopardize the probe or any evidence.
McQuade explained that the timing of the notifications about the subpoenas to Schiff, Swalwell and others likely had to do with the current Department of Justice opting not to seek an extension of the gag order, perhaps because the subpoenas didn’t provide any relevant evidence to the investigation.
Having noted earlier that grand jury subpoenas can only be issued if prosecutors have a reason to believe they will provide supporting evidence for the prosecution and not for political purposes, Vance commented, “Nothing about this looks kosher right now.”