Smith’s Team Was Aware They Could Face Lawsuits for Quietly Pursuing Senators’ Phone Records

Internal Emails Reveal Search for Phone Records

Internal emails have surfaced indicating that Special Counsel Jack Smith’s team continued to pursue phone records even after being cautioned about potential “litigation risk” for Republican lawmakers. This has come to light after Senators Chuck Grassley of Iowa and Ron Johnson of Wisconsin released these emails.

The emails discuss the ongoing “Arctic Frost” investigation related to Smith’s campaign against former President Donald Trump. Prosecutors are reportedly deciding which lawmakers to subpoena. John Keller, a former director at the Justice Department’s Public Integrity Division, mentioned in a May 2023 email that there might be legal ramifications regarding the forced disclosure of legislative call records.

In this context, Smith issued subpoenas for over a dozen Republicans, specifically seeking “detailed records of incoming and outgoing calls, text messages, direct connections, and voicemail messages” from January 4 to January 7, 2021. There was a confidentiality order in place to keep these requests hidden from the members involved, approved by Judge James Boasberg.

The subpoena targeting House Judiciary Chairman Jim Jordan originated from the Biden Justice Department and called for records from around two Justice Department officials.

Keller expressed his concerns about litigation risks but noted that it seemed unlikely that any lawmakers involved might face indictment. “Even if the government argues that calls during the relevant period do not count as protected legislative activity, the litigation risk appears minimal,” he wrote to the prosecutors.

Interestingly, prosecutors had already obtained some call records from Rudy Giuliani’s subpoena, but they believed acquiring records directly would help them understand better who was contacting these lawmakers.

The emails also indicate that Republican Senators Mike Lee and John Kennedy were under consideration for subpoenas. A mix-up occurred as Sens. Tim Scott and Rick Scott were confused, mistakenly including Tim on the list.

Grassley commented that Smith’s actions appear increasingly overreaching. He stated, “These records show that Smith and his associates penetrated Congress members who were engaged in core constitutional duties, all while operating on shaky legal ground.” He accused the Biden Justice Department of neglecting constitutional principles in their hunt for information.

In a related matter, a Senate deal to prevent a government shutdown included a clause allowing lawmakers whose phone records were accessed to sue for $500,000 per violation. Though the House voted unanimously in favor of this provision, its repeal was set for a vote on November 19, with Senate Majority Leader John Thune standing by it.