Special counsel Jack Smith continued to seek phone records of GOP lawmakers even after the Justice Department warned of a "litigation risk" to proceeding, the Daily Caller reported. Smith ordered the information on nearly a dozen lawmakers in his "Operation Arctic Frost" investigation.
The investigation stemmed from so-called fake electors in the 2020 presidential election and was yet another way to target President Donald Trump. However, Smith was warned that digging into the phone records of nearly a dozen Republican lawmakers could have constitutional implications.
Smith issued subpoenas requesting "detailed records for inbound and outbound calls, text messages, direct connect, and voicemail messages" for the time between Jan. 4 and Jan. 7, 2021. The lawmakers were to be kept in the dark, thanks to an Obama-appointed Judge James Boasberg, who allowed it.
Emails sent in May 2023 from the Justice Department's Public Integrity Section John Kelly laid out the problems with it while giving his approval to go ahead. "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," Keller told prosecutors.
The request wasn't just digging into the time around the Jan. 6, 2021, riot at the U.S. Capitol. Prosecutors also sought two years' worth of records from House Judiciary Committee Chair Jim Jordan in a grand jury subpoena issued by the Biden Justice Department.
This action was noted in Keller's advice to Smith, though it seemed like a risk they were willing to take. "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," Keller warned.
This information about foreknowledge of possible rights violations came to light on Tuesday when Sens. Ron Johnson of Wisconsin and Chuck Grassley of Iowa released the emails. This was after Grassley called this revelation "WORSE THAN WATERGATE" just last month in a post to X.
"This document shows the Biden FBI spied on 8 of my Republican Senate colleagues during its Arctic Frost investigation into 'election conspiracy' Arctic Frost later became Jack Smith's elector case against Trump. BIDEN FBI WEAPONIZATION = WORSE THAN WATERGATE," Grassley wrote.
This document shows the Biden FBI spied on 8 of my Republican Senate colleagues during its Arctic Frost investigation into "election conspiracy" Arctic Frost later became Jack Smith's elector case against Trump
BIDEN FBI WEAPONIZATION = WORSE THAN WATERGATE pic.twitter.com/V2JyiVlX48
— Chuck Grassley (@ChuckGrassley) October 6, 2025
This request came even as the Justice Department had access to some of these records from another case involving Trump's former attorney Rudy Giuliani. However, it seemed they figured that seeking more of them "would allow us to understand who else may have called these Members," prosecutors said to justify their actions.
"The closer you look, the more brazen Jack Smith’s 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," Grassley said in a statement.
"Ultimately, the Biden DOJ threw the Constitution to the wind in seeking information about my colleagues," he added. However, retribution may be coming after the deal to end the government shutdown, signed in the Senate, allows those who were affected by having their phone records examined to sue for up to $500,000 per violation.
While the House of Representatives voted to repeal that provision in a unanimous vote, Senate Majority Leader John Thune held fast to that provision on behalf of the agreived lawmakers. At least it would give them some recourse after their rights have been potentially violated, possibly even knowingly at that.
This is just another example of how people in President Joe Biden's administration were willing to do whatever it took to ensare Trump in some sort of scandal that would wreck his political future. None of that worked, and now it's time to make sure the people perpetuating this are held accountable.
