FBI Seized Congressional Cellphone Records Related to Capitol Attack

In the hours and days after the Capitol riot, the FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene. Investigators have also relied on data “dumps” from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.

Using special emergency powers and other measures, the FBI has collected reams of private cellphone data and communications that go beyond the videos that rioters shared widely on social media, according to two sources with knowledge of the collection effort.

Within hours of the storming of the Capitol on January 6, the FBI began securing thousands of phone and electronic records connected to people at the scene of the rioting — including some related to members of Congress, raising potentially thorny legal questions.

On January 11, Sen. Sheldon Whitehouse, D-R. I., released a statement warning against the Justice Department getting involved in the investigation of the attack, at least regarding members of Congress, asserting that the Senate should oversee the matter. Asked to elaborate, Whitehouse, a former federal prosecutor, told The Intercept: “Separation of powers principles generally, and the speech and debate clause particularly, restrict the executive branch’s ability to investigate members of Congress. That’s why the Constitution puts the houses of Congress in charge of disciplining their members. In the case of the January 6 insurrection, I’ve asked the Senate ethics panel to take a hard look at certain members’ behavior, including whether they coordinated or conspired with, aided and abetted, or gave aid and comfort to the insurrectionists. Those questions demand answers and the Senate ethics committee has the job to answer them.”

In recent years, the FBI has had to tread lightly in seeking any records of members of Congress due to protections under the Constitution’s speech or debate clause, which shields the legislative work of Congress from executive branch interference. The legal minefield grew out of a 2007 corruption case against former Rep. William Jefferson, D-La., when an appeals court ruled that the FBI had improperly seized material from his congressional office.

The Justice Department has publicly said that its task force includes senior public corruption officials. That involvement “indicates a focus on public officials, i.e. Capitol Police and members of Congress,” the retired FBI official said.

The cellphone data includes many records from the members of Congress and staff members who were at the Capitol that day to certify President Joe Biden’s election victory. The FBI is “searching cell towers and phones pinging off cell sites in the area to determine visitors to the Capitol,” a recently retired senior FBI official told The Intercept. The data is also being used to map links between suspects, which include members of Congress, they also said. (Capitol Police are reportedly investigating whether lawmakers helped rioters gain access to the Capitol as several Democrats have alleged they did, though Republican officials deny this.)

In the hours and days after the Capitol riot, the FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene. Investigators have also relied on data “dumps” from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.

Using special emergency powers and other measures, the FBI has collected reams of private cellphone data and communications that go beyond the videos that rioters shared widely on social media, according to two sources with knowledge of the collection effort.

Within hours of the storming of the Capitol on January 6, the FBI began securing thousands of phone and electronic records connected to people at the scene of the rioting — including some related to members of Congress, raising potentially thorny legal questions.

On January 11, Sen. Sheldon Whitehouse, D-R. I., released a statement warning against the Justice Department getting involved in the investigation of the attack, at least regarding members of Congress, asserting that the Senate should oversee the matter. Asked to elaborate, Whitehouse, a former federal prosecutor, told The Intercept: “Separation of powers principles generally, and the speech and debate clause particularly, restrict the executive branch’s ability to investigate members of Congress. That’s why the Constitution puts the houses of Congress in charge of disciplining their members. In the case of the January 6 insurrection, I’ve asked the Senate ethics panel to take a hard look at certain members’ behavior, including whether they coordinated or conspired with, aided and abetted, or gave aid and comfort to the... (Read more)

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