Anna Bower Profile picture
Feb 24 16 tweets 5 min read Read on X
How in the world did Trump’s defense attorneys obtain the phone records of prosecutor Nathan Wade?

Don’t they need a court-authorized warrant for that?

Did the divorce lawyer for Wade’s estranged wife have anything to do with this?

You’ve got questions, I’ve got answers.🧵

1/
Let’s start with how they got the phone records.

Last week, Mike Roman’s counsel, Ashleigh Merchant, told Judge McAfee that she sent a subpoena to Wade’s phone provider, AT&T, on or about Feb. 9.

That tracks with the affidavit of Trump and Roman’s private investigator.

2/
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Some of you pointed out that the PI’s affidavit uses the term “request for records” rather than "subpoena."

But that’s just another way of saying “subpoena.”

I reached out to Roman’s counsel, Merchant, who told me that she signed a subpoena for the phone records.

3/ Image
The district attorney's office, for its part, hasn’t disputed the idea that the records were obtained pursuant to a subpoena.

4/ Image
Merchant also told me that her access to Wade’s phone records had nothing to do w/ his ongoing divorce case.

That tracks with the law: As a defense attorney for a client with an upcoming evidentiary hearing, Merchant herself would be able to send out subpoenas for documents. 5/ Image
GA defense attorneys routinely issue subpoenas for phone records.

They just fill out the subpoena form & serve it on the phone carrier.

Typically, the carrier sends a notice to the person whose records are being subpoenaed.

That person can then move to quash the subpoena. 6/
Did AT&T notify Wade about Merchant's request for his cell records? If it did, why didn’t Wade object or move to quash the subpoena?

I don’t know. And the state's brief doesn't shed much light on those issues.

But AT&T produced the records on Feb. 15.

7/ Image
Now, what about the state’s suggestion that Trump & co. needed a court-authorized search warrant backed by probable cause to lawfully obtain Wade’s phone records?

Isn’t that what the Fourth Amendment is all about?!

Well, no.

The state is wrong on this point.

8/ Image
When the state—a government entity—seeks access to historic cell site location information from a phone carrier, they are required to obtain a court order backed by probable cause.

That principle comes from a Supreme Court case called Carpenter v. United States (2018).

9/
But the Fourth Amendment—and the decision in Carpenter—generally only applies against state actors.

What’s more, individuals generally have no reasonable expectation of privacy under the Fourth Amendment if they turn over information to a third party, like a phone carrier.

10/
So while the DA's office would generally need a warrant to lawfully obtain someone’s historical cell site location information under the Fourth Amendment, Ashleigh Merchant does not.

She's a criminal defense attorney, not a state actor.

11/
Beyond constitutional law, there are statutes that regulate what phone companies can turn over to third parties.

The Stored Communications Act, for example, provides protections against disclosure of the contents of customer communications—i.e., what you wrote in a text.

12/
But the SCA distinguishes between “content” and “non-content” customer records.

Cell site location information is a “non-content” record.

The statute permits disclosure of such “non-content” customer records to non-governmental persons like Merchant. 18 USC 2702(c)(6).

13/ Image
Some of you asked about AT&T’s policies and whether the company followed that policy with respect to turning over Wade’s records.

I have no idea!

But if AT&T failed to abide by its internal policies, that doesn’t necessarily mean that the records were illegally obtained.

14/
Anyway, I know some folks have been surprised to learn how easy it is for criminal defense attorneys in Georgia to subpoena certain types of phone records.

While this thread is by no means exhaustive, I hope it clarifies some of the known facts and relevant law.

End?/
On the question of AT&T policy, here’s a helpful 2022 letter written to the FCC by an AT&T executive on the subject of the company’s retention and sharing policies.

Thanks @petestrzok for finding this!

docs.fcc.gov/public/attachm…

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More from @AnnaBower

Apr 16
The first six jurors in Trump’s criminal trial are being sworn in.

Per pool, juror B400 will serve as the foreperson.

Here’s what we know about B400, per yesterday’s pool report:
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Apr 14
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@lawfare will be there to provide you with detailed reporting & analysis as Trump faces trial on 34 felony counts.

Here’s a look at what to expect from our coverage: ⬇️ 🧵1/
@TylerMcBrien will be your eyes & ears during jury selection. Follow him!

Twice a week during jury selection, we’ll publish an in-depth dispatch from Tyler as he chronicles the effort to seat 12 jurors in the criminal trial of a former President. 2/

lawfaremedia.org/article/how-to…
Once the jury is seated, @lawfare editor-in-chief Ben Wittes and I plan to be in court daily.

At the end of each day in court, we’ll break down what happened live on @lawfare’s YouTube channel. 3/

Subscribe here: youtube.com/@lawfaremedia?…
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Apr 3
New: Justice Merchan denies Trump’s bid to stave off criminal trial in New York based on presidential immunity.

nycourts.gov/LegacyPDFS/pre…
Merchan says that Trump’s motion is denied as untimely.

“The court finds that the defendant has myriad opportunities to raise the claim of presidential immunity well before March 7, 2024”—the date when Trump filed his immunity motion. Image
Because he finds that Trump’s motion is denied as untimely, Justice Merchan says that he need not address the question of whether presidential immunity “precludes the introduction of evidence of purported official presidential acts in a criminal proceeding.” Image
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Apr 3
Special counsel Jack Smith has filed his response to Judge Cannon's request for preliminary jury instructions regarding the Presidential Records Act in Trump's classified documents case.

Read the filing here: documentcloud.org/documents/2452…
Cannon asked both Trump & the special counsel to "engage with" two "competing scenarios" involving potential jury instructions regarding the impact of the PRA on Trump's charges.

"Both scenarios rest on an unstated and fundamentally flawed legal premise," special counsel writes. Image
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"The Government must have the opportunity to consider appellate review well before jeopardy attaches." Image
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Mar 27
BREAKING: California State Bar recommends that John Eastman be disbarred. Image
Read the decision of the State Bar Court of California here:

documentcloud.org/documents/2452…
"Guided by the standards, case law, & the purposes of attorney discipline, the court recommends that Eastman be disbarred."

The recommendation of the judge follows months of briefing & hearings over Eastman's efforts to "reject, delay, and/or obstruct" 2020 electoral vote count. Image
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Mar 20
BREAKING: Judge Scott McAfee issues certificate of immediate review, allowing Trump and seven co-defendants to seek appeal of order denying disqualification of Fulton County district attorney Fani Willis. Image
Per McAfee’s order, the trial court proceedings are not automatically stayed. He says he intends to address pending pre-trial motions regardless of whether the appeal is taken up by the Georgia Court of Appeals.

And the Court of Appeals could still decline to hear the case.
Slight correction: It’s Trump and eight—not seven—co-defendants who can now seek an appeal from the Georgia Court of Appeals.

(Trump’s request for a certificate of immediate review included 7 other co-defendants, but an additional defendant subsequently filed a similar request.)
Read 6 tweets

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