# legal questions on Dems spying on Giuliani **URL:** \ **Category:** Politics & Elections\ **Created:** [December 4, 2019, 2:47pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355 "2019-12-04T14:47:48Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 4, 2019, 7:29pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/21 "2019-12-04T19:29:46Z")
Federal law provides the basis to get access to these records without a warrant, although a court order is usually required. > [@18 USC 2703](#): > > (c)Records Concerning Electronic Communication Service or Remote Computing Service.— > (1)A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity— > (E)seeks information under paragraph (2). > (2)A provider of electronic communication service or remote computing service shall disclose to a governmental entity the— > (A)name; > (B)address; > (C)local and long distance telephone connection records, or records of session times and durations; > (D)length of service (including start date) and types of service utilized; > (E)telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and > (F)means and source of payment for such service (including any credit card or bank account number), > of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). > (3)A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. > (d)Requirements for Court Order.— > A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 4, 2019, 8:17pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/22 "2019-12-04T20:17:16Z")
> [@Airbeck](#): > > Unless they are in an airport men’s room. (Ewww!)² ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 4, 2019, 8:28pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/23 "2019-12-04T20:28:58Z")
So I accidentally posted before ready (stupid work, keeping me busy)…the point I was trying to make with quoting the federal law regarding obtaining phone records is that it requires decidedly less than the probable cause required by the 4th amendment. How so? Remember that they don’t get the records from the person who claims that it is private information but from the third party phone carrier who is not likely to invoke any claims of privacy. From the statute, note the standard, which is certainly less than ‘probable cause to believe there is evidence of a crime’: > [@](#): > > A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers **specific and articulable facts** showing that there are **reasonable grounds** to believe that the contents of a wire or electronic communication, or the records or other information sought, are **relevant and material to an ongoing criminal investigation**. ---
**Author:** ![RioRico](https://avatars.discourse-cdn.com/v4/letter/r/f04885/32.png) [@RioRico](https://boards.straightdope.com/u/RioRico)\ **Post date:** [December 4, 2019, 9:31pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/24 "2019-12-04T21:31:17Z")
> [@Airbeck](#): > > Well then the voters get the ultimate say. Both for POTUS and for the Senators that abandoned their constitutional duty. If that still isn’t enough, then I guess we live in an authoritarian dictatorship. Yes, “voters get the ultimate say” - IFF they haven’t been disenfranchised, suppressed, or their votes discarded or miscounted. Those ALLOWED to vote and be counted “get the ultimate say”. Meanwhile, the thread title is [del]bullshit[/del] sad. It’s not US Dems but Albanian dwarves who are tracking Rudy. Look, there goes one now! ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [December 4, 2019, 9:35pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/25 "2019-12-04T21:35:43Z")
> [@Moriarty](#): > > So I accidentally posted before ready (stupid work, keeping me busy)…the point I was trying to make with quoting the federal law regarding obtaining phone records is that it requires decidedly less than the probable cause required by the 4th amendment. How so? Remember that they don’t get the records from the person who claims that it is private information but from the third party phone carrier who is not likely to invoke any claims of privacy. > > From the statute, note the standard, which is certainly less than ‘probable cause to believe there is evidence of a crime’: IANAL but I don’t think that statute applies, since there are no courts involved here. The phone records are sought be Congress. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [December 4, 2019, 9:52pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/26 "2019-12-04T21:52:24Z")
Maybe this is a good time to pause for the OP to return and agree that these points are all correct, the Democrats weren’t spying on Rudy, etc., and thank you all for the clarification and information. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 4, 2019, 11:20pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/27 "2019-12-04T23:20:01Z")
> [@Dewey\_Finn](#): > > IANAL but I don’t think that statute applies, since there are no courts involved here. The phone records are sought be Congress. Indeed you are correct, and thanks for that! :smack: But my - clumsily made - point still stands, I think. The law does not hold disclosure of phone records from a third party provider to the standard of the 4th amendment, wherein probable cause and a search warrant are required. So, the OP is off base in thinking that there was some constitutional violation that occurred when congress got a hold of Giuliani’s phone logs. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [December 5, 2019, 2:17pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/28 "2019-12-05T14:17:03Z")
> [@RitterSport](#): > > Maybe this is a good time to pause for the OP to return and agree that these points are all correct, the Democrats weren’t spying on Rudy, etc., and thank you all for the clarification and information. I really hope Santa finally gives you that pony you’ve been wanting for so long. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [December 5, 2019, 2:54pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/29 "2019-12-05T14:54:40Z")
> [@QuickSilver](#): > > I really hope Santa finally gives you that pony you’ve been wanting for so long. 😃 I guess my concern is that keeping this thread alive (which I acknowledge I’m now doing), which started with a major misunderstanding on the OP’s part, no doubt because his news sources aren’t that great, only spreads the misinformation in the title. In a perfect world, the OP would come back and acknowledge that his information sources were wrong on this one, thank everyone, and request that this thread be closed. In this world, I’m not hopeful, but I’m sure that we’ll keep it going by bickering over details, none of which back up the OPs point. Anyway, I probably won’t be back to this thread. I’ll be busy with my pony! ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 5, 2019, 3:08pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/30 "2019-12-05T15:08:54Z")
> [@Ludovic](#): > > “What can Giuliani do about Democrat’s SPYING on him? And please, no political jabs !” "Do the spineless, hate filled Democrats who are wasting time and money investigating the completely innocent and big handed Donald Trump, have to even pretend to follow the law or can they get away with whatever they want to do, those idiotic bastards? Please, no partisanship." ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [December 6, 2019, 4:58am UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/31 "2019-12-06T04:58:20Z")
> [@Tired\_and\_Cranky](#): > > Answers below mixed in with your questions. Please do not respond to posts inside the Quote tags. That is a violation of board rules. Look at friedo’s post #18 for guidance on one way t provide responses. From the Registration agreement: [Quote Box – Do not modify another poster’s words inside the quote box. For SDMB posters, the quote must be accurate, whether displayed using [QUOTE] tags or ordinary quotation marks. Normal editorial rules apply: that is, you may indicate omitted portions of a quote by the use of ellipses “…” or devices such as [snip]. You may add text to clarify a word using square brackets (e.g., “her [the sister’s] friend”), but you may not add editorial comments or edit a quote so as to change the substantive meaning; nor may you substitute text such as “some blather” or “more nonsense” inside the [QUOTE] tags or quotation marks. We encourage accurate quoting of off-board individuals in a serious discussion; links are recommended. If it becomes apparent you’re derailing a discussion with fake or misleading quotes of off-board individuals, we reserve the right to take action. Unattributed parody quotes are permitted in all forums provided they don’t violate other SDMB rules. In the BBQ Pit forum only, parody quotes may be attributed to a parody username, provided that (a) the parody username is obviously satirical - we’ll be the judge of obviousness; and (b) no other rules are violated. Quotes attributed to parody usernames are not permitted in other forums.]([https://boards.straightdope.com/sdmb/showthread.php?t=864546](https://boards.straightdope.com/sdmb/showthread.php?t=864546)) No malice intended, so no Warning issued. Please do not do this again. [/Moderating] ---
**Author:** ![Jim\_Peebles](https://avatars.discourse-cdn.com/v4/letter/j/5f9b8f/32.png) [@Jim\_Peebles](https://boards.straightdope.com/u/Jim_Peebles)\ **Post date:** [December 6, 2019, 2:08pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/32 "2019-12-06T14:08:04Z")
> [@RitterSport](#): > > 😃 > > I guess my concern is that keeping this thread alive (which I acknowledge I’m now doing), which started with a major misunderstanding on the OP’s part, no doubt because his news sources aren’t that great, only spreads the misinformation in the title. > > In a perfect world, the OP would come back and acknowledge that his information sources were wrong on this one, thank everyone, and request that this thread be closed. In this world, I’m not hopeful, but I’m sure that we’ll keep it going by bickering over details, none of which back up the OPs point. > > Anyway, I probably won’t be back to this thread. I’ll be busy with my pony! Or maybe I didn’t misunderstand. Kimberly Strassel at the Wall Street Journal asserts Schiff’s subpoena occured before it was legally justified: > [@](#): > > Strassel at the Wall Street Journal notes: “Mr. Schiff claims the ignominious distinction of being the first congressman to use his official powers to spy on a fellow member and publish the details.” She adds, quoting former Attorney General Michael Mukasey, that Schiff’s subpoena may have broken the law. Phone carriers cannot divulge call records without an individual’s consent, except for a legitimate law enforcement purpose: this was not. > > Schiff ordered the phone records on Sep. 30, but the House impeachment inquiry was not properly authorized until Oct. 31, so he cannot claim the subpoena was justified. Strassel adds, citing constitutional law expert David Rivkin, that anyone swept up in Schiff’s phone snooping might have the right to sue. (The quote is from > **[Blue State Blues: Adam Schiff Abused His Power to Dig up Dirt on Opponents](https://www.breitbart.com/the-media/2019/12/06/blue-state-blues-adam-schiff-abused-his-power-to-dig-up-dirt-on-opponents/)** > > Schiff has done what he accuses Trump (falsely) of doing: he abused his power to ask an outside entity to investigate political opponents. since the original Strassel article was behind a paywall for me.) So SDMB legal eagles, is Strassel right? ---
**Author:** ![Lance\_Turbo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lance_turbo/32/6156_2.png) [@Lance\_Turbo](https://boards.straightdope.com/u/Lance_Turbo)\ **Post date:** [December 6, 2019, 3:10pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/33 "2019-12-06T15:10:13Z")
> [@Jim\_Peebles](#): > > So SDMB legal eagles, is Strassel right? No. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 6, 2019, 3:18pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/34 "2019-12-06T15:18:20Z")
> [@Jim\_Peebles](#): > > Or maybe I didn’t misunderstand. Kimberly Strassel at the Wall Street Journal asserts Schiff’s subpoena occured before it was legally justified: > > (The quote is from > [https://www.breitbart.com/the-media/2019/12/06/blue-state-blues-adam-schiff-abused-his-power-to-dig-up-dirt-on-opponents/](https://www.breitbart.com/the-media/2019/12/06/blue-state-blues-adam-schiff-abused-his-power-to-dig-up-dirt-on-opponents/) > since the original Strassel article was behind a paywall for me.) > > So SDMB legal eagles, is Strassel right? I’m not going to click on a Breitbart link, nor do I have a WSJ subscription. I also have no reason to delve into the idiotic rhetoric of “spy”, “properly authorized”, “may have”, and “might have”. What I will say, based only on the facts I know to be true, is that the whistleblower complaint was filed August 12th, the House Foreign Affairs, Intelligence and Oversight committees announce an investigation into Giuliani’s efforts in Ukraine and the administration’s decision to halt aid on September 9th, Schiff subpoenaed Joseph Maguire to turn over the whistleblower complaint on September 13th, Pelosi announced support for the impeachment inquiry on September 24th, and the whistleblower complaint was “declassified” on September 26th. All of those occurred before Strassel’s alleged date of the subpoena as September 30th. I know of nothing in the law that says the investigative powers of the House committees can only be used once an impeachment inquiry becomes “properly authorized”. Do you? ---
**Author:** ![Snarky\_Kong](https://avatars.discourse-cdn.com/v4/letter/s/a183cd/32.png) [@Snarky\_Kong](https://boards.straightdope.com/u/Snarky_Kong)\ **Post date:** [December 6, 2019, 3:24pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/35 "2019-12-06T15:24:58Z")
Breitbart is a neonazi propaganda site and Kim Strassel is a bad-faith reporter. You’d ask better questions if you had better news sources. ---
**Author:** ![Jim\_Peebles](https://avatars.discourse-cdn.com/v4/letter/j/5f9b8f/32.png) [@Jim\_Peebles](https://boards.straightdope.com/u/Jim_Peebles)\ **Post date:** [December 6, 2019, 3:30pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/36 "2019-12-06T15:30:34Z")
> [@Hamlet](#): > > I’m not going to click on a Breitbart link, nor do I have a WSJ subscription. I also have no reason to delve into the idiotic rhetoric of “spy”, “properly authorized”, “may have”, and “might have”. > > What I will say, based only on the facts I know to be true, is that the whistleblower complaint was filed August 12th, the House Foreign Affairs, Intelligence and Oversight committees announce an investigation into Giuliani’s efforts in Ukraine and the administration’s decision to halt aid on September 9th, Schiff subpoenaed Joseph Maguire to turn over the whistleblower complaint on September 13th, Pelosi announced support for the impeachment inquiry on September 24th, and the whistleblower complaint was “declassified” on September 26th. All of those occurred before Strassel’s alleged date of the subpoena as September 30th. I know of nothing in the law that says the investigative powers of the House committees can only be used once an impeachment inquiry becomes “properly authorized”. Do you? No, my knowledge of the law about all of this is scant. That’s why I asked my original General Question. From a layman’s perspective: Please correct me if I am wrong, but the Inquiry was kicked off with a formal vote, but the other stuff you cited wasn’t. So: the Inquiry may have had the necesary legal muster to justify a subpoena that wasn’t there when the phone records were subpoenaed. Can any SMDB legal experts cite the legal code on that? When is someone going to accuse Strassel of being a Russian agent? LMAO (Sorry couldn’t resist a joke.) ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [December 6, 2019, 3:40pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/37 "2019-12-06T15:40:33Z")
> [@Jim\_Peebles](#): > > No, my knowledge of the law about all of this is scant. > That’s why I asked my original General Question. From a layman’s perspective: > Please correct me if I am wrong, but the Inquiry was kicked off with a formal vote, but the other stuff you cited wasn’t. So: the Inquiry may have had the necesary legal muster to justify a subpoena that wasn’t there when the phone records were subpoenaed. Can any SMDB legal experts cite the legal code on that? > > When is someone going to accuse Strassel of being a Russian agent? LMAO (Sorry couldn’t resist a joke.) Your questions about the law have already been answered. See posts number 7, 8, 11, 18, and 21 at least. Can you at least read those and narrow down your questions to whatever remains to be answered in your mind? If you don’t know the law, then these will explain it to you. If you do know the law and want to argue against what was posted, please do that (but that would call into question your quoted post). The other posters responded with the law – do you accept those responses? What other open questions do you have if these are closed? Can you state them without the partisan jabs about Russian agents? ---
**Author:** ![E-DUB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/e-dub/32/403_2.png) [@E-DUB](https://boards.straightdope.com/u/E-DUB)\ **Post date:** [December 6, 2019, 3:41pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/38 "2019-12-06T15:41:25Z")
I envisioned random Democrats seeing Rudy out there and phoning it in to some central HQ in kind of a “Where in the world is Rudy Giuliani?” thing. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 6, 2019, 3:49pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/39 "2019-12-06T15:49:57Z")
> [@Jim\_Peebles](#): > > No, my knowledge of the law about all of this is scant. > That’s why I asked my original General Question. From a layman’s perspective: > Please correct me if I am wrong, but the Inquiry was kicked off with a formal vote, but the other stuff you cited wasn’t. So: the Inquiry may have had the necesary legal muster to justify a subpoena that wasn’t there when the phone records were subpoenaed. Can any SMDB legal experts cite the legal code on that? The power of the legislature to issue subpoenas is not contained in a singular legal code. “While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional oversight or investigations, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.” [From here](https://fas.org/sgp/crs/misc/RL34097.pdf). “In short, there can be no question that Congress has a right—derived from its Article I legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas. Several Supreme Court decisions have confirmed that fact.” Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84 (D.D.C. July 31, 2008). As to the breadth of that power, the Supreme Court stated: "[t]he scope of [Congress’s] power of inquiry … is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Eastland v. US Serviceman’s Fund. Finally: "The investigative power, the Court stated, “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.”20 “[T]he first Congresses” held “inquiries dealing with suspected corruption or mismanagement by government officials”21 and subsequently, in a series of decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered.”22 Accordingly, the Court now clearly recognizes “the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.”23 From the above article. ---
**Author:** ![Jim\_Peebles](https://avatars.discourse-cdn.com/v4/letter/j/5f9b8f/32.png) [@Jim\_Peebles](https://boards.straightdope.com/u/Jim_Peebles)\ **Post date:** [December 6, 2019, 3:54pm UTC](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355/40 "2019-12-06T15:54:41Z")
> [@RitterSport](#): > > Your questions about the law have already been answered. See posts number 7, 8, 11, 18, and 21 at least. Can you at least read those and narrow down your questions to whatever remains to be answered in your mind? If you don’t know the law, then these will explain it to you. If you do know the law and want to argue against what was posted, please do that (but that would call into question your quoted post). The other posters responded with the law – do you accept those responses? What other open questions do you have if these are closed? Can you state them without the partisan jabs about Russian agents? Well, 21 is about a criminal investigation, and I’m not sure this technically is one now, and even less so before the vote establishing the Inquiry. The only other cite in all the posts you cite that seems relevant is: > [@](#): > > As announced in Wilkinson v. United States,[7] a Congressional committee must meet three requirements for its subpoenas to be “legally sufficient.” First, the committee’s investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue “a valid legislative purpose” but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation. So what is the chamber and when did they authorize it? [Previous page](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355.md?page=1) [Next page](https://boards.straightdope.com/t/legal-questions-on-dems-spying-on-giuliani/844355.md?page=3)