WASHINGTON — Former special counsel Jack Smith subpoenaed Republican lawmakers’ phone logs even after the Department of Justice warned of “litigation risk” stemming from the potentially unconstitutional probe, according to emails released this week by Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.).
John D. Keller, the principal deputy chief of the DOJ’s Public Integrity Section (PIN), wrote to one of Smith’s aides on May 17, 2023, that his office “concurs in the subpoenas for toll records” for GOP senators and House reps — but cautioned that the “compelled disclosure” could violate the US Constitution’s Speech or Debate Clause.
That warning was based on past rulings by the DC Circuit Court and the Third Circuit Court of Appeals, the latter of which held “that a legislator asserting the invasion of the Speech or Debate Clause privilege by use of a grand jury subpoena to a third party may intervene and oppose such use.”
“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,” Keller added, “given my understanding of the low likelihood that any of the Members listed below would be charged, the litigation risk should be minimal here.”
Earlier that day, Smith deputy Molly Gaston notified Keller that the special counsel’s office was seeking “narrowly-tailored subpoenas” for phone metadata of at least 12 Republican members of Congress.
“In particular, we intend to issue subpoenas for January 4, 2021, to January 7, 2021, for Senators Marsha Blackburn, Lindsey Graham, Bill Hagerty, Josh Hawley, Cynthia Lummis, Ron Johnson, John Kennedy, Tim Scott, Dan Sullivan, and Tommy Tuberville, and Representative Mike Kelly,” Gaston wrote.
“Our investigation suggests that on or about January 6, 2021, Donald Trump and Rudy Giuliani reached out to these Members to ask or pressure them to delay the certification of the electoral college vote—including, in some cases, on the night of January 6, in the hour before Congress resumed the Joint Session after the attack on the Capitol.”
Kennedy (R-La.) and Tim Scott (R-SC) were not the subject of subpoenas, though the phone carrier for Sen. Rick Scott (R-Fla.) later received one.
“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.”
“I appreciate the DOJ producing documents that provide a glimpse into Jack Smith’s massive partisan dragnet,” Johnson added in a separate statement. “Collecting phone records from sitting members of Congress is only the tip of the corruption iceberg. I remain committed to exposing the full truth of Jack Smith’s and the Biden administration’s corrupt actions.”
In total, Grassley’s office noted, at least 19 non-disclosure orders were appended to the subpoenas for various cell phone records and signed by DC US District Chief Judge James Boasberg — who is now facing calls for impeachment over the alleged abuse of power.
The orders prevented at least nine Republican senators and Rep. Mike Kelly (R-Pa.) from even being aware that Verizon had responded to the subpoena for at least one year, though the cell phone carrier did not inform them of the disclosures until Grassley demanded answers.
At least two unidentified GOPers with AT&T phone service didn’t have their records turned over, according to a letter the carrier later sent to Grassley.
The Smith team’s request for “narrowly tailored” records over a three-day period also flies in the face of other subpoenas that covered months or years, like those issued to former Speaker of the House Kevin McCarthy (R-Calif.) and House Judiciary Committee Chairman Jim Jordan (R-Ohio).
Attorney General Pam Bondi also revealed that Trump’s personal call logs between November 2020 and Jan. 6, 2021, were seized during Arctic Frost.
Smith approved the subpoenas a little after noon on May 17, 2023, after receiving the emails from PIN and his staff. According to an internal memo from his office, some of the phone records had already been taken from Giuliani’s toll analysis.
“Our evidence indicates that Trump appears to have reached out to Hawley and Hagerty at around 6 p.m. on January 6; that at around 7 p.m. that night, Trump asked Giuliani to call Tuberville, Lummis, Kennedy, Hagerty, Blackburn, and Scott; that Giuliani left a voicemail message at around 7 p.m. that night intended for Tuberville in which Giuliani asked Tuberville to help delay the certification; and that staffers for Johnson and Kelly may have been involved in efforts to provide to Vice President Mike Pence on January 6 a slate of illegitimate and fraudulent elector votes from Wisconsin,” Gaston wrote in her email to Keller.
“We have intentionally limited the time period to narrow the chance of collecting material unrelated to January 6, and these are non-content records that will not reveal the substance of any communications.”
