He always knew he was crossing a line. Secret internal emails show prosecutors on Jack Smith’s team moved ahead in 2023 to subpoena phone records of Republican lawmakers — even though senior Justice Department officials warned the effort carried significant constitutional “litigation risk.”
The newly released messages, made public Tuesday by Chuck Grassley and Ron Johnson, shed light on the aggressive scope of the probe known as Arctic Frost — the broader investigation that underpinned Smith’s eventually dismissed election-interference case against former President Donald Trump, reported The Daily Caller.
In a May 2023 approval email, the DOJ’s then-Public Integrity Section chief, John Keller, cautioned colleagues: “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.”
Despite that warning, subpoenas were issued seeking “detailed records for inbound and outbound calls, text messages, direct connect, and voicemail messages” during Jan. 4–7, 2021 — the tumultuous days surrounding the Capitol riot. Judge James Boasberg signed off on nondisclosure orders that concealed the subpoenas from the lawmakers targeted. One subpoena aimed at House Judiciary Chairman Jim Jordan demanded records spanning nearly two years.
In the same email, Keller minimized the potential fallout, arguing: “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.”
Prosecutors acknowledged they already held some call-metadata obtained under a separate subpoena to former Trump lawyer Rudy Giuliani but argued that directly targeting lawmakers’ records “would allow us to understand who else may have called these Members.”
The emails also show the team briefly considered targeting Republican Senators Mike Lee and John Kennedy. In another misstep, they mistakenly placed Senator Tim Scott on an early draft list after confusing him with Florida Senator Rick Scott.
Grassley, in unveiling the disclosures, condemned the effort as a constitutional overreach. “The closer you look, the more brazen Jack Smith’s actions become,” he said. “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.”
The revelations arrive just as Congress reviews whether to allow affected lawmakers to sue over the seizures. A Senate funding package once included a provision for $500,000 in damages per violation, a measure unanimously struck by the House last month. Senate Majority Leader John Thune remains committed to keeping it.
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