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/

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/

The district attorney's office, for its part, hasn’t disputed the idea that the records were obtained pursuant to a subpoena. 4/

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/

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/

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/

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). 13/

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! https://docs.fcc.gov/public/at...

@AnnaBower Are we just going to blow past the fact that Wade and Willis both committed perjury?

@AnnaBower I have an issue with ATT quickly accessing these records with cell tower pings when Jan 6 committee waiting weeks for info...and kind of late to bring this up. Hearing was closed. Doesn't prove anything. Let's get to the TRIAL.

@AnnaBower Thank you for clarifying all of this.

@AnnaBower Thank you. That was very informative and appreciated.

@AnnaBower How the fuck does anyone believe all of these trials aren’t nothing more than election interference

@AnnaBower What you don't address is how any of this non-content records, which shows just general locations, is relevants to the actual elements of a disqualification motion?

@AnnaBower @visionsurreal And yet again, this has no relevance to the evidence that was used by a grand jury to indict these people.

@AnnaBower I have an additional question, related to whether Wade timely received consumer notice and objected. As an attorney, his phone and text records contain attorney client privileged matters and work product. Didn’t that require a screening process?

@AnnaBower None of this matters. It’s a circus. His breaking the law has zero to do with an affair

@AnnaBower @Katiescarlet2 Answers many questions I had. Thank you for taking the time!

@AnnaBower Anna Bower is the best journalist of our time because: She digs for facts and reports them accurately (almost revolutionary nowadays). She pays attention to reader feedback and addresses common questions. Sometimes one-offs, too! She doesn't traffic in pointless gossip drama.

@AnnaBower Roman is famous for his dirty tricks. a leopard doesn't change his spots. he's like stone, guilty as sin. since he can't prove his innocence, his only hope is to have the trial thrown out. smearing fani is his desperate ploy. i think, all things considered, she'll win easily.

@AnnaBower Yes. It’s been reported that Wade’s ex-wife is in cahoots with the Willis-Wade attackers. Wade testified that his divorce was “contentious.”

@AnnaBower Rump and his attorneys are teaching us brown people how we can find dirt on our prosecutors

@AnnaBower What you don't explain is how it's appropriate (legal?) for the defendant in a criminal trial to obtain the phone records of prosecutors, including potentially the indentities/locations of cooperating witnesses.

@AnnaBower As for the part about a "defense" attorney being allowed to subpoena cellphone data, would that only include in data that is used for "defense"? The data Merchant subpoenaed is not for defense of her clients.

@AnnaBower Ok…wow. I always thought that subpoenas were an instrument of the state. I didn’t know any old attorney could issue a subpoena.

@AnnaBower I think we need some SCOTUS records

@AnnaBower Excellent analysis, as always! Thank you @AnnaBower for your detailed reporting and legal explanations.

@AnnaBower @threadreaderapp unroll

@AnnaBower @AnnaBower excellent thread. What about the reliability of the geolocation? As I understand it, they only used two towers to narrow down location, but the best method for obtaining accurate location is to use a minimum of three towers. Less than 3 dramatically reduces accuracy.