This is disquieting. There is no time right now to set it in a larger context of commentary on the House Intelligence Committee’s report, released on Tuesday. Partisan characterizations are what we’d expect: Democrats say they have overwhelming evidence of wrongdoing by the president; Republicans say the Democrats have got nothing – it’s all vapor, nothing from first-hand witnesses that confirms the Democrats’ allegations.
We can deal with that later. The “bombshell” from the HPSCI report is its revelation that Chairman Adam Schiff (D-CA) subpoenaed phone records for Rep. Devin Nunes (R-CA) – the ranking member on the Intelligence Committee – and in the report presents records of 2019 phone calls by Nunes, White House attorneys Rudy Giuliani and Jay Sekulow, Giuliani’s Ukrainian contact Lev Parnas, attorney Victoria Toensing (who has worked with Parnas), and reporter John Solomon.
MSNBC interviewed Schiff briefly on Tuesday evening about the phone records.
Noteworthy points include Schiff’s statement that his committee sought the records at various times – a claim that rings odd given that there’s only one subpoena production date for all the phone records included in the report.
The date is reflected in the “Bates numbering” scheme (screen cap below), which labels each record for the purpose of accountability in the subpoena. Each record of a phone transaction has a number, and all of them are part of the production by service provider AT&T for “AT&T Document Production, Bates ATTHPSCI_20190930.”
ATTHPSCI indicates production by AT&T for a HPSCI (House Permanent Select Committee on Intelligence) subpoena.
The date is given as “20190930,” which is 30 September 2019.
All of the footnote references to phone records cite the same AT&T production reference. That means the entire production relates to the 30 September 2019 subpoena event. (I believe the date refers to the subpoena, but someone with expertise may be able to us give exact information on that.) It is unlikely that the Intel Committee wandered along subpoenaing records over a period of weeks or months and obtained them on such a request schedule all at the same time. It is more likely that they were all requested at the same time, presumably in a subpoena dated 30 September 2019 or shortly before that.
(The tabular presentations are located in several places in the report; there’s a group of them starting on page 156. There are also numerous references to individual phone calls with Bates numbers in the footnotes throughout that section and its surrounding pages.)
A quick-look survey indicates that the phone records are from April 2019. There may have been other dates outside of April; I haven’t found any yet, and would rather get this posted than wait to complete the survey. April 2019 is when Volodymyr Zelensky won the Ukrainian presidential election, Hunter Biden resigned from Burisma, and Rudy Giuliani was preparing for his planned trip to Ukraine (originally to occur in early May) to talk with officials there about corruption investigations.
Here’s another noteworthy point from the MSNBC interview with Schiff. Schiff and MSNBC’s Lawrence O’Donnell discuss calls between Giuliani and a number identified in the phone records only as “-1.”
Their discussion is about the possibility that “-1” refers to a phone President Trump is using. Schiff says they don’t know who’s at the other end on “-1,” and he wouldn’t claim it’s the president.
But they talk about it as if it could be, and seemingly as if neither of them sees anything alarming about the fact that a congressional committee subpoenaed the phone records of a lawyer representing the president, and those records may include information about calls between the president and the lawyer.
The information in the records is the basic metadata kind – originally called “pen register” data – that can be obtained with an administrative subpoena, something congressional committees can issue. The Supreme Court has ruled that the information belongs to the service provider and is not subject to Fourth Amendment privacy limitations. It doesn’t include call (or text message) contents or more intrusive types of metadata such as exact service location at the time of the call.
Schiff tells O’Donnell that Devin Nunes received the phone record information when it was provided under the HPSCI subpoena. With a date of 30 September 2019 on it, the committee Republicans would probably have had it sometime in the first half of October.
There is no time at the moment to timeline this against the other events occurring during that period. But the most important thing doesn’t need to be set in a timeline for its significance to be understood.
That, of course, is the point that Schiff subpoenaed these records in the first place – on a Republican member of his House committee, on two lawyers working for the president, on an American journalist researching the issues with corruption and investigations in Ukraine.
The use of these records to construct a one-sided narrative in the HPSCI report about “Trump-Ukraine” is mind-blowing in its irresponsibility. It certainly renders moot Schiff’s claims about his committee hearings being a sort of grand jury process. You don’t rush grand jury information out to the public to create biased mental expectations or encourage pre-judgment.
We don’t know what the phone calls cited in the HPSCI report were about. There is no reason established by the report’s presentation to think anyone involved in them owes us a single explanation. The purpose for revealing that the records were obtained seems to be trying to put Schiff’s political opponents and targets on the spot. (Schiff seemed to make rather a lot of the point that Nunes knew about the phone records being acquired – after the fact, of course. Schiff doesn’t seem aware of how appalling the average American will find it that he went snooping on the phone records of his fellow member of Congress and the president’s lawyers.)
Nunes hasn’t shown signs of worry, and probably has nothing to hide. His lawsuit against CNN, over reporting about Nunes’s alleged contacts with Ukrainians, does highlight one last point, however. Schiff seems to want to create the impression that Nunes was colluding with Giuliani and Ukrainians. But in the process, he certainly creates the impression that he – Schiff, with his phone records subpoena – may have been colluding with CNN to foster a narrative about Nunes that Nunes says is false. It’s as likely that CNN manufactured its claims about Nunes from phone records obtained by Schiff as it is that Nunes and Giuliani were collaborating to set up a “bribery” scam with Ukraine for Trump.
Fortify your minds, grasshoppers. All of this is conjecture and innuendo. None of it is proven to be meaningful evidence. Meanwhile, the whole thing is disgusting. It’s banana republic stuff. That makes it especially ironic that Nancy Pelosi said on Tuesday that pushing an impeachment timeline before the holidays wouldn’t be in the holiday spirit. Yeah. Probably not.