In a move that has raised eyebrows among conservatives, special counsel Jack Smith and his team have been revealed to have pursued the phone records of Republican congress members, despite being cautioned about the potential for "litigation risk," according to internal emails.
As reported by Western Journal, the emails, which were made public on Tuesday by Senators Chuck Grassley of Iowa and Ron Johnson of Wisconsin, expose the deliberations of prosecutors as they decided which congress members to target with subpoenas. These actions were part of the "Arctic Frost" investigation, which later evolved into Smith's 2020 election case against then-President Donald Trump.
John Keller, the former head of the Justice Department Public Integrity Section, had warned the prosecutors in a May 2023 email, stating, As you are aware, there is some litigation risk regarding whether compelled disclosure of toll records of a Members legislative calls violates the Speech or Debate Clause in the D.C. Circuit. Despite this caution, Keller gave the green light for the subpoenas.
The subpoenas issued by Smith targeted nearly a dozen Republican lawmakers, demanding "detailed records for inbound and outbound calls, text messages, direct connect, and voicemail messages" from January 4 to January 7, 2021. These requests were kept hidden from the members under nondisclosure orders, approved by Judge James Boasberg, an Obama appointee.
The Biden Justice Department's grand jury subpoena for House Judiciary Chair Jim Jordan sought records spanning almost two years. Keller, in his communication with prosecutors, downplayed the litigation risk, writing, Even putting aside the governments 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.
Prosecutors had already obtained some member call records from a subpoena to Rudy Giuliani. However, they believed that directly seeking these records "would allow us to understand who else may have called these Members." The prosecutors also contemplated issuing subpoenas to Republican Utah Sen. Mike Lee and Republican Louisiana Sen. John Kennedy, according to the emails.
Senator Grassley expressed his concern over these actions, stating, The closer you look, the more brazen Jack Smiths actions become. 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.
In an attempt to address this issue, the Senate deal to end the government shutdown included a provision allowing lawmakers whose phone records were seized to sue for $500,000 per violation. This provision was unanimously repealed by the House of Representatives on November 19, but Senate Majority Leader John Thune has defended it.
Smith's attorney has yet to comment on the matter. This unfolding situation underscores the importance of maintaining the integrity of our democratic processes and respecting the constitutional rights of our elected officials. It also serves as a reminder of the potential pitfalls of partisan politics, as it appears that the pursuit of political objectives may have overridden the respect for legal boundaries in this case.
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