Jack Smith Ignored Legal Warnings on Hunting GOP Phones

A lightly redacted email allegedly exposes former President Joe Biden's special counsel, Jack Smith, ignoring legal warnings against subpoenas targeting Biden's political opponents in the Arctic Frost investigation, according to Sens. Chuck Grassley, R-Iowa, and Ron Johnson, R-Wis.

"See advice given 2Jack Smith's team frm Biden's 'Public Integrity Section' in 2023 Smith is warned there r constitutional guardrails for subpoenaing members of Cong but Biden DOJ gave him green light anyway," Grassley wrote Tuesday on X, attaching the email to the post.

"At least 1/4 of my Republican Senate colleagues were targeted SHAMEFUL."

Smith's own lawyers offered legal warnings for Smith on the potential unconstitutionality of the subpoenas for phone records due to "Speech and Debate Clause" precedent.

"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," Principal Deputy Chief John D. Keller's email warning read.

"The caselaw is clear that a legislator asserting the invasion of the Speech or Debate Clause privilege by use of a grand jury subpoena to a third party may intervene and oppose such use."

Still, Keller's email concluded Smith should take a shot on moving forward with phone records of Biden's political opponents because "the litigation risk should be minimal" as the lawmakers themselves would never be charged.

".@ChuckGrassley and I received new documents from @AGPamBondi showing DOJ officials searching for any pretext to target their political opponents, including me and my colleagues," Johnson wrote on X, sharing another explosive email string, which was slightly more redacted than Grassley's.

"Jack Smith conducted a massive partisan dragnet aimed at crippling the Republican Party and eliminating political opposition. These records are only the tip of the iceberg."

"Iceberg" is a coincidental term for the investigation conspicuously called Arctic Frost, which aimed to freeze out President Donald Trump allies who sought to investigate election integrity in the election Biden won on the strength of mass mail-in balloting foisted on Americans under the guise of COVID-19.

Trump has long rebuked what he calls the weaponization and abuse of power by Biden administration deep state operatives to try to find a case of any kind against him. He has repeatedly said Biden's operatives relentlessly searched and overstepped legal authority in the "witch hunt" against him.

"This is what politically motivated lawfare looks like — with the Arctic Frost gang setting their sights on me, several of my colleagues, and various conservatives, but with no explanation," Sen. Mike Lee, R-Utah, wrote Tuesday on X.

"Those responsible for this will soon be required to testify under oath.

"Hearings coming soon."

While Smith's operatives ultimately signed off, they had warned the Constitution's Speech and Debate Clause protects legislative communications and allows members of Congress to challenge such requests.

Despite those protections, targeted lawmakers were never notified the data was being sought, and Smith's office pursued nondisclosure orders for many of the subpoenas.

"The closer you look, the more brazen Jack Smith's actions become," Grassley said Tuesday.

"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."

Here is the full email shared on X by Grassley:

From: Keller, John (CRM)
Sent: Wednesday, May 17, 2023 10:43 AM
To: MGG (JSPT)
Cc: TPW (JSPT)
Subject: RE: Consult
Thanks, Molly. Good to hear from you and I'm glad that you're settling into your new role!

Based on the email below and our conversation, PIN concurs in the subpoenas for toll records for the identified Members of Congress from Jan. 4, 2021, through Jan. 7, 2021. 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. See United States v. Rayburn House Office Building, 497 F.3d 654, 662 (D.C. Cir. 2007) ("The bar on compelled disclosure is absolute."); In re Grand Jury Investigation, 587 F.2d 589, 595 (3d Cir. 1978) ("Thus, telephone calls, placed or received by [the Member] or his staff in gathering from outsiders information which is weighed in the process of deciding how to vote, in drafting legislation, and in preparing for argument, may still be privileged as to use against him, even if not as to use against third parties."); id. at 594 ("The caselaw is clear that a legislator asserting the invasion of the Speech or Debate Clause privilege by use of a grand jury subpoena to a third party may intervene and oppose such use."). 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.

–John

John D. Keller
Principal Deputy Chief
Public Integrity Section
United States Department of Justice
1301 New York Ave. NW
Washington, D.C. 20530
(Desk) [redacted]
(Cell) [redacted]

Here is the full email string shared on X by Johnson:

Authorized for Public Release by Chairmen Grassley and Johnson

From: "MGG (JSPT)" <redacted@usdoj.gov>
To: "JPC (JSPT)" <redacted@usdoj.gov>, "TPW (JSPT)" <redacted@usdoj.gov>
Subject: RE: Toll Record Subpoena
Date: Tue, 16 May 2023 12:25:47 -0400
Importance: Normal

Ron Johnson/Rep Mike Kelly?

From: MGG (JSPT) <redacted@usdoj.gov>
Sent: Tuesday, May 16, 2023 12:23 PM
To: JPC (JSPT) <redacted@usdoj.gov>; TPW (JSPT) <redacted@usdoj.gov>
To: RE: Toll Record Subpoena

We should also include, to extent we don't have, Jim Jordan and Lindsey Graham.

From: JPC (JSPT) <redacted@usdoj.gov>
Sent: Tuesday, May 16, 2023 12:21 PM
To: TPW (JSPT) <redacted@usdoj.gov>; MGG (JSPT) <redacted@usdoj.gov>
Subject: RE: Toll Record Subpoena

Kevin McCarthy

J.P. Cooney

From: JPC (JSPT) <redacted@usdoj.gov>
Sent: Tuesday, May 16, 2023 12:20 PM
To: TPW (JSPT) <redacted@usdoj.gov>; MGG (JSPT) <redacted@usdoj.gov>
Subject: Toll Record Subpoena

I know it won't be to one company, but pretend for a minute.

For the period January 1, 2021, through January 20, 2021, produce subscriber information and call/SMS detail records for the following persons:

Mike Lee

Tommy Tuberville

Marsha Blackburn

Bill Hagerty

Cynthia Lummis

Josh Hawley

Dan Sullivan

John Kennedy

Should we add—
Cruz, Hawley, Perry, Gomert? Others?

J.P. Cooney