Last week, the Times reported that, during Donald Trump’s Presidency, the Justice Department subpoenaed Apple for the data of House Intelligence Committee members, their staff, and their families. The subpoenas, which were issued to find information about leaks to the media about the Russia investigation, were highly unusual and raise large questions about separation of powers. The first cases were opened in 2017, when Jeff Sessions was Attorney General; they were then revived by William Barr when he took over the Justice Department, in 2019. Representatives Adam Schiff and Eric Swalwell, two of those targeted, were informed of the cases by Apple last month, after the Justice Department’s gag order on the company was lifted earlier this year. The Times later reported that the same thing had happened to Don McGahn while he was Trump’s White House counsel, and a major source of information for the special counsel Robert Mueller’s investigators; the department also revealed this year that, during the Trump Administration, it had sought the records of reporters at several news organizations, including the Times.
I recently spoke to Katie Benner, who covers the Justice Department for the Times and who was the lead writer on the first of the paper’s stories. She was also a member of the team at the paper that was awarded a share of the Pulitzer Prize three years ago for reporting on workplace sexual harassment. During our conversation, which has been edited for length and clarity, we discussed how the Justice Department might have gone about taking such an extraordinary step, the Biden Administration’s approach to press freedom, and why the new leadership of the Justice Department might not be interested in a close look at the possible misdeeds of its predecessors.
You say in the piece that it is extremely unusual for members of Congress to be looked at. Do you understand how the decision was made to take this step?
It might be good to look at how it would typically be made.If you are going to do something like investigate a member of Congress, there’d typically be a lot of discussion about the reason why, what evidence existed that would lead the department to take such an extraordinary measure. There’d be discussion of the Constitution’s speech-and-debate clause, which is something that has often made it difficult to investigate members of Congress. There’d be discussion of the political fallout. There would be discussion of whether or not this was absolutely necessary. There’d be a lot of debate, and it wouldn’t be done casually.
This was such an unusual time at the Justice Department. You had Attorney General Jeff Sessions in place. You had Deputy Attorney General Rod Rosenstein in place. You didn’t have a confirmed head of the national-security devision. You didn’t have confirmed U.S. Attorneys in at that point in time, so there were some leadership gaps. At the same time, you had this tremendous public pressure coming from the White House to stanch the flow of leaks to the press. We know that there were investigations into at least one member of the House Intelligence Committee staff, and that there was debate over that and there was conversation about whether or not it would be appropriate to move forward with that investigation. But we’ve now seen people close to Rod Rosenstein say that he does not recall any conversations, and people close to Jeff Sessions say they don’t recall any of the sort of discussions that I just described, that would normally have to happen before a member of Congress saw their records seized by the Justice Department.
After Sessions leaves and William Barr becomes the Attorney General, you write in the piece, “Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.” Can you talk about what you mean by his view of leaks and why that would lead people to see the inquiries as politically motivated?
There were people inside the Justice Department who throughout the investigation felt that there wasn’t strong enough evidence to tie the leaks to people like Jim Comey or any of the other people who they were looking into who would be considered high-profile, like, for example, members of the House Intelligence Committee. And they felt that the investigations should be closed out because they were digging and digging and not finding evidence to suggest that continuing was going to prove fruitful. When Barr came in, he disagreed, and he felt that the investigation should be reinvigorated. He brought in an outside prosecutor from New Jersey to oversee that effort, which was something that we saw him do with other really sensitive investigations—for example, Michael Flynn’s case. He had a U.S. Attorney in St. Louis come in to take a second look at that because he did not feel that it had been properly executed.
So it was moves like that that made people wonder whether there was political motivation in what Barr was doing, coupled with the fact that there had been moments in public that led people inside the department, rank-and-file folks, career folks, to wonder whether Barr acted politically. I think the two big ones were the way that he presented the results of the Mueller report, and then the sentencing of Roger Stone, who was a close ally of the former President. So, when he wanted to reinvigorate these leak investigations, that was another red flag.
There are two ways I could see political decision-making occurring. One is making decisions based on your own political preferences. The other is trying to please your boss—in this case, President Trump—and your story also suggests that that was part of what’s going on. You write, of the decision not to charge Comey, “Mr. Barr was wary of how Mr. Trump would react, according to a person familiar with the situation. Indeed, Mr. Trump berated the attorney general, who defended the department, telling the president that there was no case against Mr. Comey to be made.” Were both going on here?
That was probably one of the most interesting things about William Barr and his tenure at the department. He personally agreed with many, many of the things that the President did. He did not think that it was wrong for the President to fire the F.B.I. director. He felt that’s within his purview as the President of the United States. He saw eye to eye with him on a lot of the Justice Department’s big responsibilities. At the same time, you had a President who was constantly attacking the Justice Department and saying what he wanted out of the Justice Department in full view on Twitter. So, when people would say, “Do you think that the President called William Barr and secretly pressured him to do X, Y, or Z?” I always thought that was a curious question. I wasn’t sure why a phone call would’ve been necessary.
So you had both an Attorney General who was a member of the Trump Administration because he believed in the Administration’s core policies and how it saw the world, especially around law enforcement, and somebody who is smart enough to know that, when your boss goes on Twitter and says that he wants his Justice Department to protect him, that that is indeed probably what he wants. And so, when we look at Barr’s motivation, I’m not a mind reader, I can’t get into his head, but you can imagine that both of those things were probably a factor in everything that he did, even if he says and he truly believes that he was working in accordance with his interpretation of the facts involved.
How much does Barr’s denial of remembering being briefed on lawmakers having their metadata examined contradict your story?
It isn’t a contradiction because, remember, when the first subpoena for records went out, it was in 2017, and Barr didn’t become the Attorney General until 2019. I don’t know how he could have remembered that act. He wasn’t there.
Can you explain how a gag order works?
Generally speaking, when the Justice Department issues subpoenas to companies, the companies’ policy is to tell customers that their data has been taken. Now, the Justice Department can ask a company to not disclose that to the customer for a year. And then the different companies have worked out agreements with the Justice Department about how many times that order can be renewed. In the case of Apple, that do-not-disclose order was renewed two times. Each time it lasts for about a year. The first one came in 2018. It was renewed in 2019, it was renewed in 2020, and then it expired in 2021. And the company, when the department did not move to renew it again, informed its customers.