Can Congress get your phone records? Jan. 6 lawsuits aim to find out

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WASHINGTON – Can Congress get your phone records?

No one knows for sure, not least because the question hasn’t been tested in court – until now. 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.

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“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 (SCA) 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."

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In 2017, the Senate Intelligence Committee used the law to get data on millions of social media interactions voluntarily from companies such as 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 are fighting back. The question is whether courts will limit this tool in congressional inquiries.

"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.

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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 the 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.

The language was modeled after the 1978 Right to Financial Privacy Act, which prohibits financial institutions from disclosing customer records. In a Trump case about that law, the 2nd U.S. Circuit Court of Appeals ruled Congress could get his financial records because the statute’s restrictions applied to the executive branch but not to Congress.

As a result, there is ambiguity to work through, Cooper said.

The committee argued in response to a Republican National Committee suit that the law is silent on whether Congress can subpoena the records, rather than prohibiting it. The RNC is fighting to prevent its digital provider, Salesforce.com, from handing over information about tens of millions of supporters.

"Contrary to the RNC’s contention, the Subpoena does not seek the contents of stored communications," House counsel Douglas Letter wrote in his filing. "Nor does the Act prohibit Salesforce’s production of other records to a legislative body."

Who's suing the committee?

The lawsuits offer a behind-the-scenes look at skirmishing between the committee and targets of its subpoenas.

Nearly all the cases argue the committee is invalid and its subpoenas violate the First Amendment right to free speech and the Fourth Amendment protection against unreasonable searches. A few lawsuits argue the subpoenas violate the Fifth Amendment right against self-incrimination and Sixth Amendment right to a fair trial.

House Minority Leader Kevin McCarthy, R-Calif., blasted the committee Wednesday for sending hundreds of subpoenas to private citizens for phone records, bank records and private communication.

“This is a political show trial,” McCarthy said. “What a disgusting betrayal of the Constitution and the Bill of Rights.”

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Most of the cases are so fresh the committee hasn’t formally responded. Legal experts said the Supreme Court appeared to confirm the panel’s legitimacy when it refused to block access to Trump’s presidential records – including handwritten notes and logs chronicling whom he met and talked with Jan. 6 – despite his claim of executive privilege to keep the documents confidential.

“I think that’s a pretty good indication of where things are likely to go on the legislative purpose with respect to the Jan. 6 committee,” Stern said.

Trials for criminal defendants from Jan. 6

At least three cases feature defendants in the Jan. 6 attack arguing release of their phone records could hurt them at pending criminal trials. The litigants blasted the subpoenas with repeated references to British colonial rule.

Meggs of Dunnellon, Florida, is charged with seditious conspiracy as part of the Oath Keepers contingent at the Capitol, one of the most serious charges stemming from the attack. He and his wife, Connie, who faces lesser charges such as obstructing Congress and destruction of property, filed a lawsuit in January to block access to their Verizon records.

The lawsuit calls the subpoena an invasion of privacy “worse than what occurred under the British Crown.”

Dillon Homol of Cocoa Beach, Florida, filed a lawsuit in February with his mother and sister to block access to the family’s Verizon records. Homol is charged with entering the Capitol, disorderly conduct and obstruction of Congress. He took photos and video in the Rotunda with his phone, according to court records.

Susanne Gionet of Anchorage, Alaska, filed a lawsuit in March to block the committee from her family’s Verizon wireless account because her son Anthime uses a phone under the plan.

The subpoena covers a period from November through late January, including when Anthime Gionet was charged Dec. 10, 2020, with a misdemeanor in Scottsdale, Arizona, in a case that remains on appeal. Under the moniker “Baked Alaska,” he livestreamed his entry into the Capitol on Jan. 6, 2021, and was charged with entering a restricted space and uttering abusive language.

The Gionet lawsuit argues the committee “acts as the British officers of the colonial era, rummaging through cell data in what one can only imagine is for evidence of criminal activity.”

Lawyers want to protect confidentiality

In at least three cases, lawyers said information about their calls would violate the confidentiality of attorney-client communication.

The committee sought election lawyer Mitchell’s phone data because she promoted claims of election fraud, participated in a call to Georgia officials to overturn election results and was in contact with Trump on Jan. 6, according to a letter accompanying the subpoena.

Mitchell, a resident of North Carolina, responded that she worked in Georgia after the 2020 election to challenge illegal votes and violations of election code for Trump. She said she wasn’t in Washington at any time from Nov. 1, 2020, through Jan. 6, 2021, the period the subpoena covers.

“She had no involvement in the planning or organization of that rally, nor did she have any involvement in the attack on the U.S. Capitol,” said her lawsuit to block access to her AT&T phone records.

The lawsuit argued complying with the subpoena "would require disclosure of call details that infringe on Ms. Mitchell’s attorney-client communications.”

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Eastman filed two lawsuits against the committee, one in California over some of his emails and one in Washington over phone records. Eastman argued the communication should be protected by attorney-client privilege or because they resulted from his work for clients. (Eastman lost the bid to keep his emails under wraps.)

Eastman drafted a debunked memo arguing Vice President Mike Pence could have thrown the 2020 presidential election to the House, where Trump could have won.

Political figures claim committee would chill free speech

A handful of political figures filed lawsuits to block access to their phone records by arguing the subpoenas would curb their political speech, including former Trump administration officials Miller and Sebastian Gorka and Republican political operative Roger Stone.

"Worse, the Chairman and the Select Committee are misusing their authority to investigate political adversaries, painting their opposition with a broad brush as insurrectionists and domestic terrorists," Miller’s lawsuit said. "The Select Committee cannot demonstrate a compelling justification that would justify this intrusion."

Gorka said the invasion of privacy “amounts to targeted retribution for his disfavored political speech and political associations.”

“Mr. Stone reasonably fears this is payback for his beliefs and lawful campaign activity that is being lumped in with illegal acts; and before a body that is not permitted to do either such thing,” Stone’s lawsuit said.

The committee chairman, Rep. Bennie Thompson, D-Miss., said in a statement the panel was reviewing Stone’s speech alleging election fraud the day before the riot and his interaction with members of the far-right extremist group Oath Keepers, some of whom provided security for him and were charged with breaching the Capitol.

Thompson cited the ruling in Eastman's emails case to justify the committee's inquiry. The judge in that case wrote that Trump probably “corruptly attempted to obstruct” Congress from certifying the 2020 election and that “the illegality of the plan was obvious.”

"His warnings about the ongoing threat to American democracy should alarm every person in this country," Thompson said.