New Docs Support Claims Jack Smith’s Team Violated Constitution

Special Counsel Jack Smith’s office analyzed the text messages of some 40-plus Members of Congress, with newly released internal documents indicating that the lead investigators ignored the established filter team review process — a process instituted to protect attorney-client privileged communications. Those documents, released Tuesday by Sen. Chuck Grassley, R-Iowa, following whistleblowers tips, prove even more damning, though, to the special counsel’s brazen disregard of the Constitution’s Speech or Debate Clause.

On Monday, Sen. Grassley made public a letter and records he obtained jointly with his colleague, Sen. Ron Johnson, R-Wis., as part of their oversight of the weaponization of the DOJ and FBI under the Biden Administration. That cover letter from the DOJ’s Office of Legislative Affairs explained to the senators that Special Counsel Smith’s team had established a filter team intended to protect privileged communications obtained during the investigators’ targeting of Donald Trump.

While the filter team protocols provided that “[n]o materials shall be disclosed to the investigative team without approval of a filter team attorney,” the DOJ’s Office of Legislative Affairs explained that documents uncovered based on whistleblower disclosures revealed that the special counsel’s office “apparently bypassed the Filter Team and directly accessed these text messages.” The “text messages” referenced were “text messages between White House personnel and several Senators and Representatives,” namely 44 different Members of Congress.

The records released yesterday by Sen. Grassley included a cache of 90 pages of emails and slides detailing the filter team process. An email dated May 27, 2022, from a contractor providing technical support to the special counsel’s office to Thomas Windom — an attorney working with Smith — proves particularly significant.

In that email, the contractor thanked Windom and his colleague, Kelly Zusman, for “jumping on an early call this morning to discuss” the “Filter Review workflow” related to the special counsel’s investigation into Trump. The summary that followed detailed the internal process and made clear that “the Filter Review Team” would make privilege determination before documents were reviewed by the investigative teams. The email stressed that if the filter team, which consisted of a group of DOJ lawyers not involved in the investigation, concluded the documents were privileged, they “will not be sent to the Substantive Team.”

Windom apparently initially followed that procedure, with an email dated June 26, 2023, showing the special counsel attorney forwarding to the contractor “a new NARA production for upload,” although why NARA provided the responsive documents directly to an investigator, as opposed to the filter team, is unclear. However, a later email dated August 21, 2023, shows NARA sending Windom a link to additional records, namely 54 spreadsheets, which include text messages of Members of Congress. Additional emails from the same date show that Windom downloaded those records and shared them with other members of the investigative team.

As Grassley explained: 

NARA provided the texts to [the Special Counsel’s Office] on August 21, 2023. Within half an hour, one of Smith’s senior lawyers, Thomas Windom, downloaded the texts and, within one hour, other members of Smith’s investigative team downloaded and began reviewing the texts. It appears the review was done without waiting for the Filter Team to evaluate and segregate privileged information.

The apparent bypassing of the filter team by the Special Counsel Office is but the latest scandal surrounding Jack Smith’s crusade against Trump — but it also represents only a portion of the problem revealed in the latest document dump: The records released yesterday show that the filter team utterly failed to consider the Speech or Debate privilege held by senators and congressmen.

Specifically, presentation slides that summarized the filter team’s purpose and process note that the task was to “review information gathered from email accounts and devices for attorney-client privilege and work product information.” The opening slide also notes that “the investigation team presented a filter protocol,” but then none of the slides even mention the Speech or Debate privilege. 

This proves particularly outrageous because Windom, who on May 27, 2022 coordinated with the outside contractor concerning the filter review process, had just ten days earlier been alerted to controlling D.C. Circuit precedent that requires Members of Congress to be given an opportunity to “identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents.”

Specifically, in what has become known as “the PIN email,” Windom, along with other special counsel colleagues, were told in an email that “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.” That email then cited the controlling precedent of United States v. Rayburn House Off. Bldg., Room 2113, 497 F.3d 654, 662 (D.C. Cir. 2007), highlighting the Court’s holding that “[t]he bar on compelled disclosure is absolute.” 

But Rayburn went further and held that before obtaining access to legislative materials — something broadly defined in the law to include communications related to legislative duties — “a Member of Congress must be provided the opportunity to identify protected materials and assert their Speech or Debate privilege.”

Yet the special counsel’s investigative team apparently approved a filter team protocol that ignored any Speech or Debate privilege — even though they knew the D.C. Circuit required Members of Congress be given an opportunity to assert that constitutional privilege. And at least when it comes to attorney-client Privilege, the Justice Department’s manual provides that filter protocols should “be tailored to the facts of each case and the requirements and judicial preference and precedents of each district . . . ”

Not only did the special counsel’s office ignore the Speech or Debate Clause when it came to filtering material obtained with subpoenas, it hid from the courts issuing those subpoenas, as well as the accompanying non-disclosure orders, that Smith was targeting the toll records — and apparently text messages too — of U.S. Senators and Congressmen.

With this evidence only now coming out, one must wonder what other rights the special counsel’s office trampled. But one thing is clear: Sen. Grassley is wise to wait to call Jack Smith to testify before the Senate Judiciary Committee until the Iowa senator has obtained all of the relevant documents identified by the whistleblowers.

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.