The Biden administration has reportedly used powerful law enforcement methods to surveil Republicans, seemingly without regard for possible violations of constitutional principles, based on new findings from congressional investigators.
Special Prosecutor Jack Smith, appointed during Biden’s term at the Department of Justice, appears to have felt strongly justified in his inquiry into former President Donald Trump. This has led to allegations that he disregarded fundamental constitutional protections, as detailed in a recent report by the House Judiciary Committee.
According to the report, Smith intruded into the communications of congressional members, individuals tasked with overseeing the actions of the DOJ and the FBI. This raises serious concerns about the checks and balances between the different branches of government.
“Congress members’ communications are safeguarded under the Speech or Debate Clause. Jack Smith is aware of this, yet he chose to ignore the Constitution to monitor Republicans,” stated Rep. Jim Jordan, a Republican from Ohio, on social media.
The findings indicate that Smith violated this Speech and Debate Clause, which is designed to prevent the Executive Branch from retaliating against legislative actions, thus ensuring a balance of power. However, it seems the FBI and DOJ paid little attention to these critical principles or the necessary caution required when investigating public officials. In one instance, they accessed the phone records of 17 Republican Congress members while investigating the 2020 election under the codename “Arctic Frost.” Gag orders imposed on those being surveilled prevented them from discovering they had been monitored for years.
Jordan mentioned that “Whether through arrogance or maliciousness, these partisan prosecutors were ready to breach the Constitution and disregard prosecutorial norms to fulfill their limited goals.” The report emphasizes that the Speech and Debate Clause protects American citizens as well, ensuring that representatives can advocate effectively for their constituents without fear of interference from the Executive Branch.
Smith’s office is said to have obtained text messages exchanged between Congress members and officials from Trump’s first administration through the National Archives and Records Administration, possibly including privileged exchanges. The DOJ is also reported to have accessed 27 months’ worth of phone records belonging to Jordan.
Additionally, the FBI conducted physical surveillance of Republican Rep. Scott Perry from Pennsylvania for a week before seizing his cellphone, the report details.
Furthermore, the report suggests that top prosecutors responded dismissively during interviews regarding the legality of accessing the phone records. For example, Assistant Special Counsel Timothy Duree stated that the “toll records” collected—detailing phone numbers and call lengths—weren’t protected under the Speech or Debate Clause. He also fluctuated between claiming that accessing nearly two years’ worth of Jordan’s records was crucial for mapping his “networks” or simply a “mistake.”
Meanwhile, Senior Assistant Special Counsel Molly Gaston debated whether certifying a presidential election by Congress constituted an “obvious” official legislative act, hence deserving constitutional protection.
Smith’s team seemingly overlooked standard legal protections. The DOJ’s Public Integrity Section only had brief discussions with Smith’s office concerning the constitutionality of their probe but often raised concerns before approving subpoenas anyway, as revealed by emails gathered by the committee. The integrity office suggested that gag orders limited “litigation risk” related to the seizure of phone records.
There are indications that the prosecutors may have also flouted standard DOJ practices. Normally, DOJ procedures require the use of “filter teams” to safeguard the constitutional rights of individuals under investigation, yet it seems Smith bypassed these legal protections.
In June 2023, Smith’s office received a significant amount of information from the National Archives, including 54 spreadsheets of text messages from Trump’s inner circle. Within an hour, senior attorney Thomas Windom was reportedly listening in on conversations involving Trump and his top advisors, including former Chief of Staff Mark Meadows and former Vice President Mike Pence, all before assessing any privileged information.
