Jack Smith Intentionally Violated Republicans’ Constitutional Rights

The Biden Administration okayed Special Counsel Jack Smith’s subpoenaing congressional phone records knowing the subpoenas were unconstitutional, emails released last week revealed. That same trove of documents also established the illegality of the nondisclosure orders issued by the courts to prevent the telecommunication providers from alerted the members of Congress of the unconstitutional seizure of their toll records.

Last week, as the nation turned its attention ahead to travel and turkey, Sen. Chuck Grassley, R-Iowa, released another two dozen documents related to the Arctic Frost investigation into President Donald Trump and Special Counsel Jack Smith’s subpoenaing of congressional phone records. A May 17, 2023 email from the Biden Administration’s Department of Justice to Smith’s team proves explosive, with the Public Integrity Section “concur[ring] in the subpoenas for toll records for the identified Members of Congress.”

This email may represent the first public evidence that the Biden Administration’s DOJ knew the special counsel’s office planned to subpoena congressional Republicans. But the scandal is even greater because in “concurring” in Smith’s use of subpoenas to target communications of members of Congress, the DOJ’s Public Integrity Section expressly acknowledged the unconstitutionality of the proposed course of action.

“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,” Principal Deputy Chief of the DOJ’s Public Integrity Section John Keller wrote in a May 17, 2023 email to two top members of the special counsel’s team. Significantly, that email then cited the controlling precedent of United States v. Rayburn House Office Building, 497 F.3d 654, 662 (D.C. Cir. 2007), citing that appellate court decision’s holding that under the Speech or Debate Clause, “[t]he bar on compelled disclosure is absolute.” That email also cited In re Grand Jury Investigation, 587 F.2d 589, 594 (3d Cir. 1978) as establishing “[t]he caselaw is clear 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.”

Notwithstanding the clarity of the D.C. Circuit’s holding in Rayburn House Office Building, “that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the [Speech or Debate] Clause,” the Biden Administration agreed with Special Counsel Smith’s decision to subpoena the congressional Republicans’ telephone records. The oxymoronically named Public Integrity Section justified its concurrence based on its “understanding of the low likelihood that any of the Members listed below would be charged,” and therefore “the litigation risk should be minimal here.”

In other words, the Biden Administration ignored Smith’s blatant violation of congressional Republicans’ constitutional rights under the Speech or Debate Clause because the special counsel’s office was unlikely to criminally charge any of the congressional Republicans — and therefore, there was little “litigation risk” that a court would exclude the unconstitutionally seized evidence.

That the Biden Administration’s DOJ and the special counsel’s office viewed the subpoenaed congressional Republicans as uninvolved in any of the supposed criminal activity under investigation related to the 2020 election proves significant for a second reason: Several federal judges or magistrates entered nondisclosure orders under the Stored Communications Act, meaning the telecommunication providers were directed not to “disclose the existence of the Subpoena to any other person (except attorneys for PROVIDER for the purpose of receiving legal advice).”

But the Stored Communications Act authorizes a nondisclosure order only if a judge finds there is “reason to believe” that notifying an individual of the subpoena would result in “(1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.” 

Yet in subpoenas sent to Verizon for the records of Senators Lindsey Graham (South Carolina), Bill Hagerty (Tennessee), Josh Hawley (Missouri), Dan Sullivan (Alaska), Tommy Tuberville (Alabama), Ron Johnson (Wisconsin), Cynthia Lummis (Wyoming), and Marsha Blackburn (Tennessee) and Representative Mike Kelly (Pennsylvania), Special Counsel Smith sought a nondisclosure order. Smith likewise sought a nondisclosure order when he subpoenaed AT&T for Sen. Ted Cruz and the records for another still-unknown member of Congress. And in both cases, Judge James Boasberg found “reasonable grounds to believe that such disclosure will result in destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.”

Given that the special counsel’s team — with the concurrence of the DOJ — believed it unlikely that any of the congressional Republicans would face criminal charges, it is inconceivable that the special counsel’s office would nonetheless represent to a court that there were “reasonable grounds” to believe disclosing the subpoena to the members of Congress would result in the destruction or tampering of evidence, intimidation of witnesses, or otherwise jeopardized the investigation.

In fact, the cache of documents Sen. Grassley released on Tuesday included a memorandum the special counsel’s “Election Investigation Team” drafted to justify subpoenaing the records, and that document provided not even a hint of concern over whether congressional Republicans might obstruct the investigation. Instead, the memorandum suggested the subpoenas would seek corroborating evidence concerning calls Rudy Giuliani made to members of Congress, as well as fill gaps in various toll records the special counsel had already obtained. Smith’s team also wanted to “understand who else may have called these Members, as well as who the Members called at around the same time as they were contacted by Giuliani.” That latter rationale, though, runs headlong into the Speech or Debate Clause — which seems the more likely reason the special counsel’s office sought the nondisclosure orders.

On this point, Sen. Grassley’s release last week reveals another significant fact, namely that Special Counsel Smith was fully aware of his team’s plans to subpoena congressional Republicans. Specifically, Smith’s lead prosecutors emailed the special counsel on May 17, 2023, attaching a copy of their memo stating they “intend to subpoena toll records 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.” The special counsel replied to that email by requesting Raymond Hulser, who had authored the memorandum along with J.P. Cooney, to “stop by.” Then, after Husler added two citations to the memorandum following their meeting, Smith “approved” the subpoenaing of the congressional Republicans.

Whether Smith also approved the seeking of a nondisclosure order remains to be seen, as does what specifically the special counsel’s office stated in its application for the nondisclosure order to Judge Boasberg — an order that never should have been issued.

But then again, Special Counsel Smith never should have approved the subpoenas since they violated the congressional Republicans’ clearly established rights under the Speech or Debate Clause of the Constitution.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.