Special counsel Jack Smith’s team pressed forward with secretly seeking phone records for Republican members of Congress, even after being warned it exposed them to “litigation risk,” internal emails show.
Emails released Tuesday by Sens. Chuck Grassley of Iowa and Ron Johnson of Wisconsin reveal prosecutors weighing which members of Congress to target with subpoenas as part of the “Arctic Frost” investigation, which became Smith’s 2020 election case against President Donald Trump.
“As you are aware, there is some litigation risk regarding whether compelled disclosure of toll records of a Member’s legislative calls violates the Speech or Debate Clause in the D.C. Circuit,” former head of the DOJ’s Public Integrity Section John Keller told prosecutors in a May 2023 email greenlighting the subpoenas.
Smith’s subpoenas for nearly a dozen Republican lawmakers requested “detailed records for inbound and outbound calls, text messages, direct connect, and voicemail messages” between Jan. 4 and Jan. 7, 2021. Smith obtained nondisclosure orders hiding the requests from members, which were approved by Judge James Boasberg, an Obama appointee.
A grand jury subpoena for House Judiciary Chair Jim Jordan obtained by the Biden DOJ requested records from a nearly two year time period.
“Even putting aside the government’s potentially meritorious argument that the calls over the relevant period–especially unsolicited incoming calls–would not constitute protected legislative acts, given my understanding of the low likelihood that any of the Members listed below would be charged, the litigation risk should be minimal here,” Keller wrote to prosecutors.
Though prosecutors already had some member call records from a subpoena to Rudy Giuliani, they reasoned that seeking their records directly “would allow us to understand who else may have called these Members.”
Prosecutors also considered issuing subpoenas to Republican Utah Sen. Mike Lee and Republican Louisiana Sen. John Kennedy, according to emails. They mixed up Sen. Tim Scott with Sen. Rick Scott, mistakenly placing the former on their initial list of targets, per the emails.
“The closer you look, the more brazen Jack Smith’s actions become,” Grassley said in a statement. “These records show Smith and his merry band of partisans operating on a legally weak foundation by intruding on Members of Congress who were involved in core constitutional functions. Ultimately, the Biden DOJ threw the Constitution to the wind in seeking information about my colleagues.”
The Senate deal to end the government shutdown included a provision that would allow lawmakers whose phone records were seized to sue for $500,000 per violation. The House of Representatives voted unanimously to repeal the provision on Nov. 19, but Senate Majority Leader John Thune has defended it.
Smith’s attorney did not immediately respond to a request for comment.
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