House Minority Leader Kevin McCarthy (R-Calif.) this week threatened to retaliate against telecom and tech companies that comply with a House committee’s request to preserve call records for certain people connected to the Jan. 6 Capitol attack. McCarthy also warned ― incorrectly, according to legal experts ― that preserving such records would be illegal.
One of the few people publicly bolstering McCarthy’s argument is Federal Communications Commission member Brendan Carr, who has oversight over telecom companies.
But neither Carr nor McCarthy have mentioned their conflict of interest as they echo each other’s claims: Carr is married to McCarthy’s general counsel, Machalagh Carr.
She has been McCarthy’s counsel since March 2019, per her account on Legistorm, a database of biographical information on Capitol Hill staffers. And as his counsel, she almost certainly had a hand in crafting a statement by the GOP leader on Tuesday claiming that the telecom companies would be engaging in illegal behavior ― the same claim her husband has echoed in his capacity as an FCC commissioner.
Companies that comply with the House committee’s request “are in violation of federal law and subject to losing their ability to operate in the United States,” McCarthy tweeted Tuesday. “If companies still choose to violate a federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law,” he threatened.
McCarthy didn’t cite any statute supporting his contention that this is illegal. In fact, several experts have said it is perfectly legal for Congress to ask companies to preserve records of calls and that they don’t know what McCarthy is talking about. The House committee didn’t ask for call logs to be turned over, either; it asked companies to avoid destroying certain people’s records in the event that there are future subpoenas for them.
Still, on Thursday, McCarthy pressed on. He retweeted a Wall Street Journal editorial board piece featuring comments from Brendan Carr saying the House committee doesn’t have the automatic right to anyone’s records.
“Federal law requires telecommunications carriers to protect the privacy and confidentiality of Americans’ call records,” the FCC commissioner said, warning that his agency “has brought enforcement actions against carriers to ensure their compliance.”
Brendan Carr also tweeted out the Wall Street Journal piece on Wednesday, adding, “The claim that a single Member of Congress has unchecked power to secretly obtain the private data of any and all Americans they choose is as sweeping as it is chilling. Thankfully, that claim is wrong.”
Not only does it appear that Brendan Carr is using his position to back up his wife’s boss, but the fact that he is publicly echoing the GOP leader’s claims in his role as an FCC commissioner could certainly be seen as an effort to intimidate telecom companies ― the same ones he has oversight over ― from complying with the House committee’s request.
In an email, Carr said his recent public comments on the subject were not an effort to defend McCarthy’s claims. He said he has long spoken about Section 222 ― the section of the Telecommunications Act of 1996 relating to privacy of customer information ― and its limits on the government’s ability to obtain people’s protected data.
“My motivation for speaking then is the same as now: ensuring that Americans’ confidential records remain protected consistent with the law,” Carr said.
He also distanced himself from McCarthy’s claim that it would be illegal for telecom companies to comply with a request from Congress to preserve call records for certain people. Carr said his issue is with subpoenas.
“I haven’t said (that I can recall) that there’s a 222 or other issue with a request to preserve documents,” said the FCC commissioner. “Rather, I’ve said that any subpoenas that seek records need to be run through the 222 legal framework, which imposes limits on the discretion to release records.”
McCarthy spokesperson Matt Sparks provided HuffPost with links to the Wall Street Journal opinion piece that cites Carr’s comments and to another opinion piece by conservative legal scholar and Fox News contributor Jonathan Turley. Both pieces accuse Democrats of playing politics and breaking norms by including certain GOP lawmakers, including McCarthy, in their list of people whose information they want tech companies to preserve.
Sparks dismissed the idea that there is any conflict of interest in McCarthy’s general counsel being married to an FCC commissioner publicly reinforcing her boss’s warnings of repercussions for companies that comply with requests by the House committee probing the Jan. 6 attack.
“Machalagh is the sharpest legal mind on the [H]ill and any indication her work is conflicted is absurd,” he said.
This story has been updated to reflect comments from Carr and McCarthy’s office.