Smith’s Testimony on Seizing Phone Records
In a recent deposition, Jack Smith revealed that he hadn’t been informed by judges that his team was acquiring phone records of Republican members when asked to agree to a nondisclosure order related to the subpoenas. This information surfaced through a document obtained by the Post.
During a December 17 meeting with the House Judiciary Committee, Smith maintained that keeping these subpoenas confidential was crucial to prevent “a significant risk of obstruction of justice,” especially within the context of the FBI’s broader Arctic Frost investigation focused on potential interference in the 2020 election.
When queried by a Judiciary Committee member about whether the judges were aware they were mandating phone companies like AT&T and Verizon to relinquish call records of legislators, Smith responded, “I don’t think we specified that, because I don’t think it was the Judiciary Committee’s policy at the time.”
Committee members argued that this action posed a risk to constitutional “speech and debate protections,” alleging that around a dozen legislators had their cellphone metadata compromised, including notable figures like former House Speaker Kevin McCarthy (R-Calif.) and committee chairman Jim Jordan (R-Ohio).
Moreover, unclassified FBI records reveal that Representative Scott Perry’s (R-Pennsylvania) cellphone was also monitored in his congressional office and home prior to an incident involving his device—marking the only reported seizure of a lawmaker’s phone during the Arctic Frost inquiry supervised by Smith.
“But when it comes to members of Congress, there are speech and debate protections, and you’re completely bypassing them,” one anonymous questioner highlighted during the session.
The questioner went on to explain that call records provide significant insights into which legislators are communicating with whom, and correlating this information with legislative calendars can reveal influences on decision-making. “Do you see the importance of that?” they asked.
Smith acknowledged the seriousness of the Speech or Debate Clause, stating, “I think they’re part of our constitution. They’re an important part of the separation of powers.” He asserted that their requests for subpoenas were sanctioned by the government, particularly the Department of Justice’s public integrity section, which indicated agreement with the necessity of the subpoena.
The questioner retorted, “And we saw some of that email traffic, and as you can imagine, I respectfully disagree with their views on speech or debate laws.”
Smith emphasized that secrecy orders are implemented when there’s a belief that evidence may be destroyed or witnesses might be intimidated, clarifying that such orders are “not based on an allegation that the person with the cell phone is necessarily personally trying to obstruct the investigation.”
Lawmakers, including Jordan, McCarthy, and Perry, along with other members like Senators Marsha Blackburn (R-Tenn.) and Lindsey Graham (R-S.C.), are expressing outrage and calling for the impeachment of Judge James Boasberg for allowing the request to seize call records. However, Smith’s deposition suggests that the judge might not have been fully aware of the specifics regarding the targets involved.
It’s worth noting that a recent legislative provision allows senators whose electronic records are seized without prior notice to receive payments up to $500,000.
Jordan started his questioning by addressing the scrutiny of his phone records dating back to January 2020, suggesting that the legal assessment by the Justice Department’s Public Integrity Division did not exonerate Smith of any constitutional issues.
“His assessment is quite sketchy,” Jordan remarked, “We’re not going to get sued. Who cares about speeches and debates?”
Smith disagreed with this characterization, later clarifying that his office had not consulted with the Justice Department’s Office of General Counsel or the Attorney General regarding any past court decisions that might apply.
Throughout his testimony, Smith reiterated that the collection of phone records was lawful. “There was nothing improper about the way these records were obtained,” he stated, specifically addressing the subpoena concerning McCarthy’s phone.
Smith indicated he was not involved in the subpoenas of Perry and Jordan, as these were issued before his appointment as special counsel.
In the course of his deposition, Smith appeared somewhat forgetful regarding several details about the investigations he led, particularly concerning Trump’s efforts to overturn the 2020 election results and the classified documents allegations related to Mar-a-Lago.
Ultimately, cases tied to these allegations were dismissed after a federal judge ruled Smith’s appointment was illegitimate due to a lack of congressional vote. Smith, however, expressed a belief during his deposition that both the D.C. and Florida cases possessed sufficient evidence for convictions, stating, “In both cases, we believe there was proof beyond a reasonable doubt.”
