Eric Swalwell’s lawyer demands investigation into federal air marshal surveillance

Disgraced ex-Congressman Eric Swalwell can’t even fly the friendly skies in peace.

The FBI enlisted air marshals to secretly monitor Swalwell aboard a United flight from Germany in an effort to eyeball his electronic passcodes, The Atlantic revealed — prompting Swalwell’s attorney to demand a federal probe into alleged leaks surrounding the criminal investigation.

“For nearly a decade, former Congressman Swalwell has been the subject of continuous federal scrutiny, investigations, and leaks — without any charges ever being brought,” said Sara Azari, the celebrity attorney Swalwell hired after he was accused of rape and sexual assault by multiple women.

On Aug. 8, Swalwell boarded a nine-hour United Airlines flight from Frankfurt, Germany, to Washington, DC, unaware that federal air marshals had allegedly been tasked with watching him.

The FBI asked the Federal Air Marshal Service to covertly monitor Swalwell throughout the flight and watch him use his electronic devices to determine whether officers could visually ascertain his passcodes, according to records obtained by The Atlantic.

“Recent reporting that a federal air marshal was deployed to watch him enter his phone’s passcode during an international flight is an extraordinary escalation of that pattern,” Azari said.

A representative for Swalwell did not respond to The California Post when asked why Swalwell was in Germany.

Accusations that Swalwell sexually assaulted women surfaced this spring, prompting the former East Bay representative to suspend his campaign for governor and resign from Congress in mid-April. He has denied any wrongdoing.

The covert surveillance came exactly one week before the federal investigation dramatically spilled into public view.

On Aug. 15, FBI agents were waiting for Swalwell when he stepped off another flight at San Francisco International Airport.

Surveillance footage exclusively obtained by The Post shows Swalwell — dressed incognito in a hat, black hooded sweatshirt and sneakers — surrounded by several agents at his arrival gate before being escorted through the airport, up an escalator and eventually into a restricted area. Swalwell appeared calm and cooperative throughout the encounter.

Agents served Swalwell with a search warrant and seized a white Apple iPhone, its charging cable and wall adapter, and an Apple MacBook Pro, according to an inventory filed with the warrant. Swalwell was allowed to leave after the search.

Federal agents executed additional warrants at Swalwell’s Washington, DC, home and seized other potential evidence.

Azari went scorched earth on the government’s handling of the investigation Wednesday, arguing that investigators never needed to resort to such tactics because Swalwell had been cooperating.

“We have been in contact with the Department of Justice throughout this investigation and have always cooperated,” Azari said. “Not once were we asked for Mr. Swalwell’s phones or devices. Had the DOJ asked, we would have complied, as we have with every other request.

“Instead, the DOJ executed search warrants publicly at an airport and on his residence with three small children, later leaking the warrant’s return to the press. Additionally, reporters were tipped to the search warrant executions days before they occurred — information that could only have come from the DOJ.”

Azari said the alleged leaks were part of a pattern that included the recent disclosure of investigative material involving suspected Chinese operative Christine Fang.

Swalwell admitted he “hooked up” with Fang, who was suspected by US intelligence officials of working for China, according to FBI records. The FBI investigated Swalwell’s interactions with Fang and ultimately cleared him.

“Grand jury secrecy and the Department’s own policies exist precisely to prevent an uncharged citizen from being tried in the press by anonymous government sources,” Azari said. “We have asked for and expect an investigation into the source of these leaks and disclosures.”

Alexander Wentworth-Ping, a former US assistant attorney in New York who now works as counsel for the law firm Schlam Stone & Dolan LLP, called the reported use of air marshals to obtain Swalwell’s passcodes “extraordinary,” but he added that it may not violate the law.

“Surveillance in a public place is not a Fourth Amendment search,” Wentworth-Ping said.

“An air marshal, like any passenger who is in the cabin lawfully and uses the naked eye to observe what is happening in an open space, would not need a warrant. What probably requires protection is if it [the device] is in a closed carry-on bag or a camera is set up in the lavatory.”

Wentworth-Ping noted that bypassing Apple devices’ security mechanisms is notoriously difficult. That may be why the operation was conducted a week before Swalwell’s devices were seized in San Francisco.

The FBI has not commented, while the Transportation Security Administration, which oversees the air marshal service, did not respond to the Atlantic’s request for comment.

The Justice Department opened an investigation into Swalwell in April as he faced multiple allegations of sexual misconduct, including an allegation from a former staffer that he raped her when she was too intoxicated to consent and another woman’s allegation that he drugged, choked and raped her.

Other women accused Swalwell of sending unsolicited images of his genitals.

Swalwell, who is married with three children, denied any wrongdoing while admitting he had made “mistakes in judgment.”

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