Despite Warnings Of ‘Litigation Risk,’ Jack Smith’s Team Secretly Hunted For GOP Phone Records
Special Counsel Jack Smith’s prosecutors aggressively pursued the phone records of nearly a dozen Republican members of Congress during the 2020 election investigation, pressing forward despite internal warnings that the move created “litigation risk” involving constitutional protections, according to documents released Tuesday.
The internal communications, unveiled by Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), offer a rare window into the “Arctic Frost” investigation—the probe that eventually led to the election interference indictment against President Donald Trump.
The emails show a prosecution team weighing the legal sensitivities of subpoenaing sitting lawmakers against their desire to corroborate calls made by Trump and Rudy Giuliani on January 6, 2021.
The documents reveal that in May 2023, Smith’s team, led by prosecutor Molly Gaston, sought authorization to subpoena “toll records”—logs of calls made and received—for a specific list of GOP heavyweights. The targets included Senators Lindsey Graham, Rick Scott, Josh Hawley, Marsha Blackburn, Tommy Tuberville, and Johnson himself, alongside Pennsylvania Representative Mike Kelly.
However, the request triggered concerns within the Justice Department’s Public Integrity Section (PIN). John Keller, a deputy chief at PIN, flagged the potential conflict with the Speech or Debate Clause, which shields lawmakers from legal inquiry regarding their legislative acts.
In a May 17, 2023 email, Keller warned Gaston that “the bar on compelled disclosure is absolute” regarding certain legislative activities. Despite noting the “litigation risk,” Keller ultimately gave the green light. He reasoned that because the likelihood of charging the lawmakers themselves was low, the risk was “minimal,” effectively clearing the path for the subpoenas.
“PIN concurs in the subpoenas for toll records for the identified Members of Congress,” Keller wrote, noting the request was narrowly tailored to the dates of January 4 through January 7, 2021.
The released records also highlight a scrambling effort by prosecutors to identify exactly who Trump’s allies were contacting. In one exchange, the team realized they had targeted the wrong Senator Scott. While initial drafts listed South Carolina Senator Tim Scott, the team later noticed the phone number in question had a Florida area code.
“One correction—we are going to get Sen. Rick Scott’s tolls, not Sen. Tim Scott,” Gaston wrote in a correction email later that evening.
The justification for the subpoenas, outlined in a memo by Smith’s team, was to determine if Trump or Giuliani had successfully pressured lawmakers to delay the certification of the electoral college vote. Prosecutors noted specifically that they wanted to cross-reference Giuliani’s call logs, which they described as varying in quality, with the carriers of the members of Congress.
Senator Grassley, in a letter accompanying the release, framed the documents as evidence of the “weaponization of law enforcement” against political opponents, a charge the Justice Department has consistently denied.
The DOJ maintained in its response to the Senators that the review of these matters is ongoing.
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