Special Counsel Jack Smith and his team effectively ignored existing constitutional standards to target more than half a dozen GOP senators as part of their Arctic Frost lawfare against Donald Trump, new records show.
Released on Tuesday by Republican Sens. Chuck Grassley of Iowa and Ron Johnson of Wisconsin, the new documents disclose communications between Smith’s team and Biden Justice Department (DOJ) officials about their plans to file subpoenas against more than eight GOP senators. As The Federalist previously reported, the subpoenas sought to acquire these senators’ cell phone “tolling data” from Jan. 4-7, 2021, as part of the investigation (Arctic Frost) that ultimately became Smith’s elector lawfare against Trump.
The unearthed records show May 2023 communications from Smith’s team about getting approval from the DOJ’s Public Integrity Section (PIN) to issue the subpoenas. As described by the agency, PIN “oversees the investigation and prosecution of all federal crimes affecting government integrity, including bribery of public officials, election crimes, and other related offenses.”
On May 17, 2023, the Special Counsel’s Office’s Molly Gaston emailed PIN Principal Deputy Chief John Keller about Smith and Co.’s plans to issue what she described as “narrowly-tailored subpoenas” to obtain the tolling data from the mentioned Republican senators and Rep. Mike Kelly, R-Penn.
In seeking PIN’s consultation on the matter, Gaston claimed the special counsel’s bid to obtain the phone data was based on their alleged findings indicating that 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.”
“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,” Gaston wrote. “Please let me know if you have any questions about this proposed investigative step.”
Keller responded back later that morning, notifying Gaston that PIN “concurs in the subpoenas for toll records for the identified Members of Congress from Jan. 4, 2021, through Jan. 7, 2021.” What’s most notable about the email, however, is the part in which Keller warns Gaston of the “litigation risk” associated with seeking such subpoenas and existing constitutional protections in place for members of Congress.
“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 and Debate Clause in the D.C. Circuit,” Keller wrote, citing past case law acknowledging a member’s right to “intervene and oppose” such a subpoena.
“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, given my understanding of the low likelihood that any of the Members listed below would be charged, the litigation risk should be minimal here.”
The conversation between Keller and Gaston is significant for two key reasons.
The first is that it exposes a major discrepancy related to what Gaston told Keller about the nature of the special counsel’s use of “narrowly-tailored subpoenas” in the Arctic Frost probe. While it’s true Smith’s team acquired those mentioned subpoenas against the GOP senators and Kelly, documents released in recent weeks show that the special counsel had also acquired subpoenas for the phone records of former House Speaker Kevin McCarthy, R-Calif., and Rep. Jim Jordan, R-Ohio, that spanned several months and years, respectively.
The second notable point is that the new records show that, despite Keller’s citation of existing constitutional standards and members’ rights to know about the subpoenas, the targeted Republicans were never informed by Smith that their phone records were being sought in his Arctic Frost probe. In fact, Smith and Co. sought nondisclosure orders for many of the subpoenas it filed in the probe —19 of which were signed off on by Obama-appointed D.C. District Judge James Boasberg.
Tuesday’s document release also showed that Smith’s team considered using subpoenas to acquire the phone records of Republican Sens. Mike Lee of Utah and John Kennedy of Louisiana. They furthermore indicated that Smith’s team mistakenly included Sen. Tim Scott, R-S.C., on its initial list of targets, but later swapped him out with Sen. Rick Scott, R-Fla.
“The closer you look, the more brazen Jack Smith’s actions become,” Grassley said in a Tuesday 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.”
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
