Lawfare Daily: Inside the Law Letting Senators Sue Over Phone Data

[Intro]

Natalie Orpett: What it is doing is saying that things that were perfectly legal between 2022 and the enaction of this legislation are now poof, illegal, and can be recovered. $500,000 per instance against.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Executive Editor Natalie Orpett and Senior Editor Michael Feinberg.

Michael Feinberg: To the extent there was media coverage of this bill, it was uniformly negative. And you know, individuals in competitive races, which are coming up realized that if they support this, it really looks like they're supporting millions of dollars of self-dealing for some of the most powerful people in the country.

Benjamin Wittes: You probably didn't notice, but Congress passed an important piece of legislation to give senators the ability to recover large amounts of money when the government conducts surveillance, even lawfully that may touch their phone records. Why? Because January 6th, you know, we're talking all about it today.

[Main Podcast]

Natalie, get us started. Most people missed that these piece of legislation exists. It came about in the context of reopening the government. What is it and why should anyone care?

Natalie Orpett: So this legislation–which was actually amending a different piece of legislation separate from the appropriations bill, everyone was focused on to end the government shutdown, but was passed as part of the deal that ended the shutdown–is legislation that creates a cause of action for senators to get as a remedy up to $500,000 per instance when their data is accessed by the government, including in connection with lawful investigations.

Reportedly from Politico, the language came directly from Senator Thune. Senator Cruz said in an interview that it was responsive specifically to subpoenas that were issued by Jack Smith in the course of his investigation into election interference on January 6th.

Benjamin Wittes: Alright, so there's so much packed in there and if I hadn't already read your guys’ article in detail, I would be super confused. So let us start unpacking it by asking what do we know about what happened with respect to the accessing of senators records back at the time of the Jack Smith investigation?

Natalie Orpett: So what we know is that the government subpoenaed data from eight senators and one member of the House that I believe began, it was for a couple of days. I believe it began on January 5^th or January 4^th and went through January 7^th. There was a grand jury involved in the issuance of the subpoena. So of course a grand jury and a judge signed off.

And the data collected was toll records, which is metadata. It's information like when a call was placed, how long it lasted, and between which phone numbers. It's no content, so you can't hear the information. And as I said, it's collected in connection with the government's investigation into what happened on January 6th, and it occurred in 2023. But this legislation actually backdate and is retroactive to 2022. So it does very intentionally capture those subpoenas.

Benjamin Wittes: And Mike, just for level setting purposes, why are people so outraged about this, that they're creating a cause of action for senators when they’re investigating January 6th? There were some senators who, you know, did some weird stuff in connection with January 6th. Why is it so outrageous that Jack Smith would have. I mean, it's not a wire tap, right? I mean, he's, he gathered some toll records. What's the big deal?

Michael Feinberg: So there's a couple ways to answer that question. I'm gonna start with the proffered reason, which is that this is largely a separation of powers argument. It's actually not that old an argument, and even Democratic, at least one Democratic senator in the past has made a very similar point in a different context.

But they're essentially saying that if the executive branch is collecting records of communications of legislators, in this case mainly senators, that it is naturally infringing upon the legislatures, Congress's sort of core powers as an independent institution and a co-equal branch of government. Now, you can also make a more skeptical story about why they're up in arms, but I think that might be best saved as the conversation develops when we sort of talk about what are the real world consequences of this.

Benjamin Wittes: Right. Okay. So on its face piece of legislation that creates a cause of action for senators, but not House members, and we'll get to that in a moment. That involves a substantial amount of money per count, and we'll get to that in a moment for accessing records. It's kind of a, almost a penumbral protection of the speech and debate clause values. Is that fair?

Michael Feinberg: Yeah, I think that's, I think tying it into the underlying principles behind the speech and debate clause is actually the best way of looking at it.

Natalie Orpett: Well, I think another key component to it though is Congress's oversight role, right? So if you think about the example of when the Senate Intelligence Committee was investigating the CIA's torture program. We learned later that the CIA was monitoring the communications of Senate staffers.

That was, of course, under a different authority than DOJ was using for these subpoenas, but it was an instance that I think is a good reminder of how crucial governments oversight capacity can be and just how disruptive accessing data can be.

Benjamin Wittes: Alright, so before we get to the text of the legislation and the problems in it, I just wanna say I am really suspicious of the entire good faith premise of this. It seems to me that what's really happening here is that a bunch of senators who played untoward roles in the events of January 6^th wanna whitewash their own histories by making it seem outrageous that in the context of prosecuting and investigating Donald Trump, their records might have been touched.

Talk me out of this, or is that right? That this is the, these high minded issues that you've both referred to are a kind of convenient smokescreen for what is actually just a retconning of the entire 2020 election period.

Michael Feinberg: It's not just the 2020 election year period. What we really have to look at is sort of the almost Orwellian reconning of every investigation that has occurred into the president's conduct as a candidate or as an office holder.

And what we're seeing are a series of investigations whose legitimate predication and execution has been found time and time again by inspectors, general grand juries, regular juries and judges to be totally acceptable and within the norm. Now there's been, there is one decision about the appointment of a special counsel, which is sort of an outlier to that summary. But in general, none of these investigations, including the one in two, whether there was an attempt to steal the 2020 election, have been found wanting from any legal or policy perspective.

I think what we actually have here is that there was a group of senators, a not in substantial group, who very much lended rhetorical support to those efforts by the administration. And there was a legitimate question about whether their refusal to certify the results of the election was done in concert with what would ultimately be indicted as a criminal act.

And it's important to know that in order to suss that out, you would have to know, were these senators talking to the White House on January 6^th. And the only way to really figure that out is to look at the toll records of their communications.

So, you know, DOJ in particular, the FBI always uses the least intrusive means when trying to answer an investigative question. That's a matter of policy. Toll records are pretty unobtrusive. You know, not only are you not getting the content of the communications, you're just getting numbers when you get toll records back. You get, you know, 10 digits, an area code and a U.S.-based phone number. You don't get the name of the holder of that number. That requires a whole separate round of legal process.

So this was really a pretty elementary basic investigative step that only minimally infringed upon any privacy the senators may now be claiming.

Benjamin Wittes: Moreover, if you were really concerned about the policy issue. And the separation of powers issue. You wouldn't do this retroactively. You do it retroactively because you are trying to say something about history. Fair, Natalie?

Natalie Orpett: Yeah, I do think that's fair. It's highly unusual to backdate legislation like this. It's in fact illegal in the context of criminal statutes. It is not illegal because the ex post facto clause does not apply to civil causes of action. But it is highly unusual because if you think about it, what it is doing is saying that things that were perfectly legal between 2022 and the inaction of this legislation are now poof illegal and can be recovered $500,000 per instance against.

Benjamin Wittes: All right, so here's another question that I have about why this, why now? This comes as part of a deal to reopen the government, which means somebody has to care about it a lot. You know, of all the things that. Democrats and Republicans, said were bright lines that had to be resolved to get the government reopened. Nobody was talking about this when the government shut down. Who cared about it this much?

Natalie Orpett: So I don't actually know the politics. Behind this other than reportedly Senate Majority Leader John Thon is responsible for the language directly. There were several other senators who supported it. There were actually notably some that disagreed with it. And of course members of the House vehemently disagreed with it.

There has been longstanding concern about this Senator Wyden who of course a Democrat and I do not believe is remotely involved in the question of access of records by Jack Smith's investigation has been talking about this for years. So it's possible that there were other people who believed in it.

But I think to your earlier question and to the timing of this. I don't think it reflects a good faith effort. I think it, it is important to zoom out a little bit and say that there are very legitimate debates to be had about the balance of powers and DOJs investigative powers. Because although Mike is right and everything he said with respect to the investigation, these investigations and what we know about them. We all know that the FBI has abused its power in the past. No offense, Mike. I'm sure you were never one of them.

And so there is, there is a debate to be had about the times where it is appropriate for the FBI, DOJ or any other law enforcement entity to be required to notify members of Congress. It is a totally fair debate. There are a lot of nuances to it.

The fact that this got slipped in and no one was talking about it beforehand, as you said, Ben suggests that someone was slipping it in. It was not being given a lot of thought. The legislation is very poorly drafted for reasons we can talk about suggests that it was rushed and that in no way indicates good faith.

Michael Feinberg: If I could jump in for a second here, I'm not quite gonna put on my blue rain jacket yet and defend everything the FBI does. That'll come later in the episode. But it's important to know that normally when these discussions happen. Congress, the legislators engage with the other stakeholders in the debate.

It is pretty weird that you would have a good faith effort to do something like this that did not include at least some reach out to the investigative and prosecutorial agencies involved. This would not be the sort of thing that was hastily written and slipped in undercover of night. It would be the result of potentially years long discussion with the Justice Department and the executive branch. And we just didn't see even overtures of that sort of behavior in this scenario.

Natalie Orpett: My question on that though, would we necessarily know publicly if those conversations were going on?

Michael Feinberg: It really depends on how much of a big deal the government or each branch wanted to make out of it. But what I do know is under normal circumstances, which is a qualifier I think we can say is not really applied over the past few months, the sheer length of those negotiations would preclude us from assuming that they have happened in this scenario.

I could be wrong, but a balance of the probabilities or Occam's razor or what have you would indicate that there was not a protracted negotiation process made in good faith between the executive and the legislative branches.

Natalie Orpett: Yeah, and certainly not with respect to this specific language, which of course is always very much part of the debate is actual word by word discussion of the balance of equities, as you say.

Michael Feinberg: Yeah. And we can get into this now or later, but like when you talk about the language, it's particularly problematic because I think it sweeps up a lot of things that the senators did not necessarily intend and had they engaged with DOJ, I know it's been a bit deprofessionalized, but I would've hoped that somebody in the Office of the Deputy Attorney General, or in the FBI director's office would've pointed out the sort of second and third order unintended consequences of the way this bill is worded.

Benjamin Wittes: Alright, we're gonna go into that. Let's talk about the actual text of the bill. But before we do, there is one other dimension to the politics around it, which was that the House really didn't like this bill passed it anyway. And then Mike Johnson, the speaker of the House, says he wants to repeal it. So I'm confused. Why did the House pass it if they all hate it?

Natalie Orpett: I think it's as simple as saying that it was part of the shutdown deal on the Senate side, which the House had been waiting for, and the politics of the moment dictated that the shutdown needed to end, and so Congress signed off. Mike Johnson actually announced in advance that he would create a vote to repeal it immediately. The House did so on November 19th, so the legislation that was just passed is now back before the Senate to be repealed.

Benjamin Wittes: But I assume the Senate would have no interest in repealing it, right?

Natalie Orpett: I assume so too though we'll see if the fact that it has now gotten some attention after being slipped in and is causing quite a lot of outrage in many corners, I think it's fair to say. In no small part because the cause of action is against the United States, which means that taxpayers are footing the bill for this gargantuan payoff. We'll see if, if they rethink the question.

Benjamin Wittes: Alright. With that, let's turn to the actual text of the bill and you organize your piece on it into a number of issues.

So let's start with issue number one, which is that it applies to senators, but not to members of the House. That seems to me to be a good thing in that it a bad idea that's limited to a hundred people in one house of Congress is better than the same bad idea extended to 535 members of two houses in Washington.

That says, it does seem grossly inequitable in that if we think of this as a civil liberties violation, it seems like recovery for me, but not for thee, is not the right way to think about it. So does the house or do members of the House hate this bill because it is the wrong principle or because they do not get a windfall from it? Mike, do you have a sense of what the, what the distaste in the house is over?

Michael Feinberg: I don't know that the, I mean, look, the House has hundreds of members and I think it's difficult under the best of circumstances to talk about a sense of the House unless they've specifically voted on it.

Benjamin Wittes: Well, but this is something that the speaker put before the House and a bunch of people voted for. Right. So well let, let's talk about the animating spirit for a moment.

Michael Feinberg: Yeah. I think what's happening is that to the extent there was media coverage of this bill, it was uniformly negative. And you know, individuals in competitive races, which are coming up realized that if they support this, it really looks like they're supporting millions of dollars of self-dealing for some of the most powerful people in the country.

I think the opposition to this, regardless of where an individual member stands, was largely a matter of political pragmatism and not one of deeply felt sentiment.

Benjamin Wittes: Interesting. Okay. You don't have a sense of whether the speaker's vision here is that we want in on this deal too, or whether it's that the, that the senators shouldn't have it and no member of Congress should have this.

Michael Feinberg: I think it's the latter, and whether that's sincerely held or performative for political purposes is an open question and probably varies member to member. But look, the House Judiciary Committee is not exactly known for its friendliness towards investigations like that that Jack Smith ran, and the fact that even they were voting against the senatorial proposition really indicates that this is a politically toxic issue for them to even go near.

And it's not like in their informal messaging or in their press interviews. They were suggesting a half measure where they send it back, there's some adjustment, then it goes back to the House. Like there is no indicia that they wanted ongoing negotiations on this. It was just a flat no.

Benjamin Wittes: Alright, issue number two. When does $500,000 not mean $500,000?

So, Natalie, you guys flag that all the press coverage here says it's recovery of up to $500,000 on this made up cause of action, but actually the cost is gonna be a lot higher than that. So if you are a Republican senator whose civil liberties have been brutally abused by having your toll records collected, how do you turn $500,000 into a lot more? What does the bill let you do in that regard?

Natalie Orpett: So several things, and I think it's worth emphasizing that many of these things are very, very standard investigative practices. So if you have a cell phone and an office phone and you are a senator, that is two separate instances. That is $1 million.

If you are part of an investigation where say the FBI might be interested in what your senior staff was doing because sometimes you don't have your phone with you when you're a senator, and instead you turn to your chief of staff, your communications director, et cetera, et cetera, to use their phone. That is another $500,000 per pop. So say the senator and five of his or her senior staff all have their cell phones toll records collected. That is another $3 million.

It also covers things like email accounts, any other communication channel, so text messages, other types of communication. It is also for every single search conducted, so it's pretty standard in the course of investigations that you might need to refresh the search ended.

I think most importantly that I did not see covered pretty much anywhere is it covers each individual time that the government gets or seeks a non-disclosure or a judicial sealing order. And that means that if the government convinces a judge that it is appropriate to, in contravention of this legislation, for whatever reason, not notify the senator, then that constitutes an instance. That fact is worth $500,000 as well.

Benjamin Wittes: Yeah, so $500,000. On a retroactive multiple, $500,000 for you and your staff on a retroactive thing starts to look to me like a gratuity. And particularly when you kind of inflate it the way, the way these multipliers let you do.

So let's talk about that retroactivity, Mike. There's something very weird about the fact that it does not, the legislation creates this cause of action, despite not suggesting that there's anything wrong with what the government did.

Michael Feinberg: Well, I think I, I'm not quite sure I agree with the premise of your question. I think that the senators very much think that what the government did was wrong. It's just their view is not really an objective one. And it's grounded more in a sense of personal affront than it is–

Benjamin Wittes: Right. But I mean they, they don't contend that it was illegal.

Michael Feinberg: No.

Benjamin Wittes: They don't. In fact, they have to change the law to make it illegal.

Michael Feinberg: Correct

Benjamin Wittes: They don't contend that a grand jury didn't authorize, although we all know that grand juries never see the subpoenas that they authorize. But they're done in the name of a grand jury. They weren't challenged before the grand jury. It just seems very weird to retroactively to create recovery for something that was conceitedly lawful at the time that it was done.

Do you have any sense that that was, I, I don't know, it strikes me as, as a, a very bizarre component of this.

Michael Feinberg: Yeah, look, this bill has a lot of problems. We have covered some of the, some of them already. We're gonna cover others in a few moments. But what they all have in common is they all exhibit a failure to think not just about immediate consequences, but also second and third order consequences.

And I think to the extent that there is a real intellectual deficiency in what you're pointing out, it's simply because they didn't put the time in to think about it. This looks very much like a rushed bill, fueled by a sense of grievance rather than like a coherent, well thought out legal argument.

Benjamin Wittes: Yeah, and it's a rushed bill driven by grievance that amounts to, and Lindsey Graham practically said it give us money. I think he said something like, I want this to hurt so much that they never do this again.

Michael Feinberg: That's pretty close to the exact off the cuff language he used in a press conference shortly after the story broke.

Benjamin Wittes: Alright, so $500,000 per instance. And then Natalie, we have the issue that what counts as an instance is, shall we say, broad. So what does count as an instance and how many instances should we expect each of eight senators to be able to allege?

Natalie Orpett: Yeah, so instances defined very, very broadly. It is data from a quote device, like a cell phone, like other types of devices that are used for communications for accounts like email accounts for each individual record or communication channel for each individual search that is conducted.

So that's the example I gave before of sometimes these subpoenas are reissued to refresh or with additional as the investigation has progressed, additional detail or change in scope. And it is also for each individual non-disclosure order or judicial sealing order sought, maintained or obtained.

Benjamin Wittes: And so again, you have eight senators. Each of them has staffs. Each of them presumably has multiple instances. How many millions of dollars are we talking about realistically per senator, or do we just not know how many instances they're gonna be able to allege?

Natalie Orpett: Yeah, I think it's really hard to tell. We don't know exactly what the subpoenas permitted. But I think it's fair to assume that, you know, the, the senator's cell phones toll records do seem to have been collected according to reporting.

It's entirely possible their computers were as well. It's possible their email account information was accessed. And as I said earlier, it's also very possible and to me, I would think probable that their staff members' data was accessed through subpoenas because senators are not always the ones who are directly communicating. So if you imagine email account and device of each of 10 people, including the senator, that is, that is millions and millions of dollars.

Benjamin Wittes: Alright. There's another issue, Mike, which is that not only is instance defined weirdly, but violation is weirdly defined or broadly defined as well. So talk about that in dialogue with the instance issue.

Michael Feinberg: Yeah, so it's not entirely clear to me based on the text what's going to constitute a violation other than just the mere collection of this data. There is no follow on activity required by the government in terms of analyzing it, using it in evidentiary hearing, publicizing it through some other matter, like a special counsel's report.

It's just the mere act of collecting it and receiving it that generates a violation. In other words the acquiring of it could be entirely in good faith and comport with every other legal principle and procedure on the books, but the mere fact that it was done at all, regardless of motivation is gonna constitute a violation.

Natalie Orpett: Yeah, and I think it's actually a little bit broader than that because it's, senate data was acquired, subpoenaed, searched, accessed or disclosed pursuant to a search seizure or demand for information. So there's, those are all different types of authority for seeking, accessing, et cetera, the information.

And just to reiterate, because I think this is a really significant feature of this, it also involves when DOJ wants to get from a judge, a non-disclosure order or a judicial sealing order, which to me seems very much to infringe on the judiciary's, right to make decisions about what is the proper way to conduct law enforcement.

Benjamin Wittes: Alright, so Natalie, in addition to a very broad definition of an instance and a broad definition of a violation this also seems to apply let's just say beyond the scope of what might be protected by the speech and debate clause in some other ways. How does purely personal corruption or maybe campaign related activity fit into this?

Natalie Orpett: So yes, this is found in the definition of the term Senate data. So this is the type of data that all of this law applies to. It includes when a senator is acting in a personal capacity, only if the data is, basically coming through Senate systems. But if the per, if the Senator is acting in a personal capacity and acting through his or her campaign for elected office, it is covered. I think that, in my view, that really adds a dimension to the dubiousness of the notion that this is in connection with some sort of legitimate separation of powers concerns.

Benjamin Wittes: In other words. Let's take Bob Menendez because he's a good recent example of a senator who was the court found this was not speech and debate taking bribes from the Egyptians and gold bars not covered by the speech and debate clause.

And if you're, say, taking gold bars and the administration and, and the FBI gets data as a result, you may not be a target yet, right. But the, the FBI gets data about the receipt of gold bars from, you know, the toll records of the people you're getting the gold bars from that, that you would get $500,000 per instance of that.

Natalie Orpett: At a minimum correct.

Benjamin Wittes: And if you were routing it through your campaign and so you were doing fraud donations to the campaign, but that these were the information, the toll records were acquired from, you know, set, you were talking about it on Senate phones, right? $500,000 per instance?

Natalie Orpett: Correct.

Benjamin Wittes: Yeah. That seems, seems right.

All right. Let's talk about some of the practical applications of this, because there's multiple things going on here, right? One is the affront to good order in government when a bunch of senators vote to create a cause of action to give themselves money. The second is the second order effects that such a rule will have in the future on other investigations.

So we've talked about some deficiencies in the language, Mike. How does this play out in the future? What are the things that the senators, the practical considerations that the senators aren't thinking about as they are eagerly voting to line their own pockets?

Michael Feinberg: So there's basically gonna be four. One very general, three more specific.

The first general one is what this is doing in the ordinary practice of investigations law enforcement is creating such cost prohibitive restrictions on using the investigative technique that it is functionally gonna be taken off the table. As Natalie described when we were talking about the language in terms of violations, this is really any collection or leverage of toll records, whether through a phone, electronic or other means that an investigator or prosecutor would ever use. So just in terms of day-to-day rather vanilla investigations, if this bill passes, this technique no longer functionally exists.

But I can think of even with that stricture three scenarios where. DOJ and the FBI or other investigators may still decide this is worth doing, but it's going to be immeasurably more complex in terms of how it gets sorted out in the aftermath.

The first is some sort of mass casualty or assassination event at Congress. The very first thing an investigator and prosecutor is gonna wanna know after such an occurrence is who was there? And the single best way for sussing out who was there at the time of an event is what's called the geofence warrant, which essentially subpoenas internet service provider or telecommunications provider, and gets a list of all accounts that were in a geographic area defined by time and space.

Now that's gonna encompass literally everybody in the area, potentially everybody in the building, and we're talking about under this bill, potentially billions of dollars in civil damages. When you add in the fact that when there is a terrorist event or an assassination, you don't just wanna know who was there at the time of the event. You also wanna know who was there that normally is not there. So you're probably doing another round of data collection for the day before in a similar time period, which doubling the damages. That's scenario number one.

Scenario number two is a cyber attack on Congress. One of the first things investigators are gonna want to get are the security logs. And the definition of an incident in this bill is sufficiently vague enough that it could very well include a number of the subsets of security logs that an investigator would want to get.

Scenario number three is there are a lot of national security investigations largely in the counterintelligence realm where you don't know the identity of your subject. You just know some of his or her attributes. And the way these investigations are run is sort of through a funnel. You start gathering information on the biggest class you can conceive of, and you use what you learn to make the cross next cross section of the funnel a bit more particularized.

So let's say a classified military plan or special access program or something along those lines was briefed to Congress and it shows up in the newspaper, or we determined that a foreign government has gotten a hold of it. The first thing you're gonna want to do is legal process on everybody who was present for or had access to that briefing. That's by definition going to be a very large group and once again, encompass potentially millions or billions of dollars. But you need to do that first level collection to narrow your suspect class.

Benjamin Wittes: So the law does have one exception, which is for circumstances in which the senator is a target. Now my understanding of target designation is that you only designate somebody at a target, as a target right at the end of the investigation when you're about to charge them.

Does the use of the word target here mean target in the sense of witness subject target designations of that the Justice Department uses, or is it some broader thing? Because if it's the former, it strikes me as essentially meaningless.

Natalie Orpett: So I think target doesn't necessarily have to come at the end of a standard investigation. It often does, but certainly doesn't always. But the term target is defined in the legislation itself, and it says it's actually a very high bar. I would say in some ways a higher bar than a Justice Department investigation.

It says that the prosecutor or a grand jury has to have substantial evidence linking the person to the commission of a crime. The person is a putative defendant. And in addition to that, the investigators have quote, formally designated as a target in official records. That cannot be done retroactively. It cannot be done after the data is accessed and the person is determined to be a target.

There's one other piece of this that I think is worth saying that the, the exception for a target is styled as an affirmative defense. So if a senator becomes aware of the fact that his or her data has been accessed brings a suit, a civil suit, that makes public the fact that this data was collected and as Mike was referring to earlier, that has major implications for an investigation.

It is usually the case that investigators will want to keep investigations quiet. In fact, that is a requirement in the Justice manual. And so as soon as a senator becomes aware of this, he or she can bring a civil suit and then in response, DOJ can say, well, actually you were the target of an investigation and that's why it's okay. And taxpayers do not need to pay five, $500,000 for each instance that we collected your data.

Benjamin Wittes: Alright, so as we have discussed, this has become controversial now and the House has turned around and passed a bill repealing it. And the Senate, presumably the same pressures that caused it to be passed and the first place are gonna make it trickier to repeal. What do we know about where this thing is in Senate, I was gonna say consideration, but really reconsideration is the right term.

Natalie Orpett: I believe that it is sitting and there is no indication that it is going to come to the floor, but I am not positive of that.

Michael Feinberg: The only individual senator I have seen talk extensively about this since the House took its vote, is Lindsey Graham and–

Benjamin Wittes: Who always talks extensively.

Michael Feinberg: He always talks extensively, and I don't know that intellectual and political consistency is one of his defining features, but for now he seems vehemently still in favor of these restrictions.

Benjamin Wittes: Do we know what the original vote was in the Senate? Was this, I mean, Natalie mentions that this idea has some support among Democrats, Ron Wyden in particular. Is this, was this a broadly bipartisan thing or was it just a, people didn't know what they were voting for and were trying to end the shutdown thing?

Natalie Orpett: I dunno the answer to that, and I don't know if they took the same vote for the appropriations bill and the, this, this is in the Legislative Branch Appropriations Act. Mike, I don't know if you're aware of what the vote was.

Michael Feinberg: No, I, I, I don't have the statistics in front of me or the voting record. I seem to recall when first reading about it that it was neither a party line vote, nor an overwhelming majority, but that just like, you know, the organization was generally okay with this. It wasn't particularly vehement.

Benjamin Wittes: Alright, so there's one other party that has to be okay with this for it to be super meaningful, which is the courts. Not because it raises profound constitutional issues, though retroactivity always raises some issues, although retroactivity against the government probably doesn't.

But you know, an individual judge would have to look at this case and say given the retroactivity, I find, or you know, a jury would have to find, somebody would have to find that you've suffered damages that are compensable at more than say a dollar A as a result of having had an FBI agent look at your, look at your phone records in the context of when you were actually trying to undermine, you know, the peaceful transition of power and not certify the election. And Donald Trump was causing a riot.

And I'm a little skeptical that the federal district court would actually award significant compensation, which raises two questions. One is whether the Justice Department would defend such a suit, because of course, the president has his own interest in undermining the integrity of these investigations. And secondly, if the Justice Department did defend these suits, would this be a jury question or a bench question? What do we know about what the litigation would look like, Natalie?

Natalie Orpett: I mean, to, to the last piece of it, I think it could be a question either for the judge as a matter of law, on a motion to dismiss. For example, if the question is whether this is some sort of due process violation, the retroactivity that is, or any other number of whether this fall fails as a matter of law.

It could also be a question of fact, I suppose, for a jury. But given the breadth of the definitions of both violation and instance, it's difficult to imagine that a jury wouldn't find, given what I would expect in terms of causes of action that they wouldn't find that the facts meet the law.

Benjamin Wittes: But there would have to be damages, right?

Natalie Orpett: Well, the, the legislation calls for a minimum of $500,000 in recovery.

Benjamin Wittes: Oh, I'm sorry. I thought that was a, a ceiling.

Natalie Orpett: No, it's a minimum and it is, if there are greater damages, it is the greater of $500,000 or actual damages.

Benjamin Wittes: Okay, so it's really, it's really $500,000 for having been investigated, right? Great.

Michael Feinberg: Committing a crime turns out to be profitable.

Benjamin Wittes: Right, don't let it ever say that crime does not pay. Folks, we're gonna leave it there. Crime pays get investigated by the FBIl just make sure you are a senator first. Natalie Orpett, Michael Feinberg. Thank you both for joining us today.

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