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.

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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).

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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

Jul 23
SCOTUS handed Trump a victory by declaring that former presidents enjoy a great deal of immunity from prosecution for official acts.

But could a footnote buried in the court's opinion open up a loophole for the prosecution?

On the elusive footnote 3 🧵: lawfaremedia.org/article/what-s…
The footnote arises in one of the more controversial parts of the court’s opinion. The majority, having decided that a president is presumptively immune from being held criminally liable for all official acts, goes one step further in Section III-C.

2/
Not only is the president presumptively immune from prosecution for official acts, but the majority holds that evidence of those official acts cannot be used in a prosecution based on unofficial conduct.

3/ Image
Read 13 tweets
Jul 15
BREAKING: Judge Aileen Cannon dismisses Trump’s classified documents case based on “violations” of the constitution’s Appointments Clause and Appropriations Clause Image
Read Judge Cannon’s 93-page order dismissing Trump’s charges for u lawful retention of classified documents in Florida: storage.courtlistener.com/recap/gov.usco…
Lots to say about this opinion and what's next.

The @lawfare team will discuss live at 3 pm ET.

Join us then!

Read 5 tweets
Jun 27
NEW: Judge Cannon denies Trump's request for a Franks hearing on alleged false statements or omissions in the affidavit supporting Mar-a-Lago search warrant.

But she GRANTS his request for an evidentiary hearing on particularity of the warrant and attorney-client privilege. Image
In other words: Judge Cannon thinks there needs to be further factual development before she can rule on Trump's motion to dismiss his charges based on insufficient particularity of the warrant and AC privilege.

Read Judge Cannon's full order here: documentcloud.org/documents/2478…
On the issue of the particularity requirement, Judge Cannon says that she "agrees with Defendant Trump that ambiguities persist in certain categories of terms."

Namely: "government and/or Presidential records" and "information...regarding national defense information." Image
Read 4 tweets
Jun 25
NEW: Judge Cannon appears poised to reject one of Trump’s challenges to the validity of the warrant that authorized FBI search of Mar-a-Lago in 2022.

During a hearing today in Ft. Pierce, Cannon expressed skepticism about Trump’s claims that the search was “unconstitutional.”
Judge Cannon did not rule from the bench. But at the end of the hearing, she grew frustrated with Trump’s attorney, Emil Bove.

She reminded Bove that the relevant legal question at issue is whether the warrant is sufficiently particularized. “It seems like it is,” she said.
Bove’s arguments also elicited a sharp rebuke from David Harbach of the special counsel’s office.

After Bove attempted to raise issues related to Trump’s other pending motions, Harbach accused him of “hijacking the hearing.”

“It’s not fair,” he told Judge Cannon.
Read 5 tweets
Jun 24
Hello from the federal courthouse in Ft. Pierce, where we’re on lunch break ahead of a hearing in Trump’s classified docs case.

Coming up: A hearing on the special counsel’s motion to bar Trump from making statements that pose a significant danger to law enforcement agents. Image
UPDATE: Court has adjourned for the day.

During the afternoon session, Judge Cannon appeared disinclined to grant the special counsel’s request to restrict Trump from making statements that pose a significant and imminent danger to law enforcement in the case.
Judge Cannon reprimanded prosecutor David Harbach during the tense hearing. As Harbach argued that redacting witness names on court documents is not sufficient to protect law enforcement officers in the case, Cannon interjected:

“Mr. Harbach, I don’t appreciate your tone.”
Read 6 tweets
Jun 21
Good morning from the federal courthouse in Ft. Pierce, FL ☀️🌴

Later today, Judge Aileen Cannon is set to hold a hearing on one of Trump’s motions to dismiss his criminal charges in the classified documents case.

I’m here for @lawfare. Follow along for updates ⬇️ 🧵 Image
Today marks the start of not just one but three days of hearings scheduled by the presiding judge, Aileen Cannon.

The focus this morning? Trump’s argument that his charges in the classified docs case should be dismissed bc special counsel Jack Smith was “unlawfully” appointed.
Unfortunately, federal court rules in the Southern District of Florida prohibit phones in the courtroom. So no live tweeting from me today.

I’m stashing my phone now, but I’ll provide updates as soon as I’m able to during breaks.
Read 9 tweets

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