Attorneys for former special counsel Jack Smith called his actions “entirely lawful, proper and consistent with established Department of Justice policy” in defending the investigative steps taken by his team, including obtaining phone records of sitting Republican lawmakers as part of the probe of President Trump’s efforts to overturn the 2020 election.
Earlier this month, Republican Sen. Chuck Grassley, who leads the Senate Judiciary Committee, published a document alleging that the phone data from eight GOP senators and one Republican House member were obtained by the FBI as part of Smith’s investigation into efforts by President Trump and his allies to overturn the results of the 2020 election.
In a letter to Grassley dated Monday, Smith’s attorneys Lanny A. Breuer and Peter Koski wrote that they are “compelled to correct inaccurate assertions made by you and others concerning the issuance of a grand jury subpoena” for the lawmakers’ phone records, rebuffing criticism from GOP lawmakers that the FBI “tapped” the lawmakers’ phones and “spied” on their communications.
The records, which the FBI analyzed in 2023, enabled investigators to see basic information about the date and time of phone calls but not the content of the communications, the senators said. The senators’ phone data that investigators scrutinized came for calls made between Jan. 4 and Jan. 7, 2021, and was obtained by Smith through a grand jury subpoena, the senators said.
The document, dated Sept. 27, 2023, lists the Republican lawmakers whose records were allegedly investigated: Sens. Lindsey Graham of South Carolina, Bill Hagerty of Tennessee, Josh Hawley of Missouri, Dan Sullivan of Alaska, Tommy Tuberville of Alabama, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming and Marsha Blackburn of Tennessee, as well as Rep. Mike Kelly of Pennsylvania.
“As you know, toll records merely contain telephonic routing information — collected after the calls have taken place — identifying incoming and outgoing call numbers, the time of the calls, and their duration. Toll records are historical in nature, and do not include the content of calls,” Smith’s attorneys said. “It is well established that obtaining telephone toll records pursuant to a subpoena is a routine and lawful investigative step that does not violate an individual’s expectation of privacy.”
Breuer and Koski noted to Grassley that special counsel Robert Hur, who investigated President Biden’s handling of classified documents, also obtained telephone toll records of Biden, and that under the first Trump administration, the Justice Department obtained similar records from Rep. Eric Swalwell and then-Rep. Adam Schiff, as well as over 40 congressional staffers during an investigation into media leaks.
Last week, five of the senators whose phone records were obtained by the government wrote a letter to Attorney General Pam Bondi asking her to open an investigation into Smith’s investigations and refer him to the Justice Department’s Office of Professional Responsibility.
“Jack Smith was a rogue Special Counsel,” the senators wrote, claiming he “would do anything to stop President Trump — including taking concerted steps to spy on duly elected members of Congress.”
“Without any sufficient rationale or cause, Jack Smith’s team used a federal grand jury subpoena to obtain the phone records of sitting United States Senators and a Member of the House of Representatives,” the senators continued.
According to the indictment of Mr. Trump in the 2020 election probe, part of Smith’s investigation into the Jan 6, 2021, attack on the U.S. Capitol focused on Mr. Trump’s alleged attempts, alongside his co-conspirators, to call senators and representatives to pressure them into delaying certification of Biden’s Electoral College victory.
Last year, a final report penned by Smith — which argued the president would have been convicted if not for his 2024 election win — also pointed to phone calls placed by Mr. Trump and members of his circle.
“We are confident that an objective assessment of the facts and the law will compel the inescapable conclusion that Mr. Smith’s investigative efforts, including his Office’s issuance of a grand jury subpoena for telephone toll records, were handled in an entirely lawful and appropriate manner,” Smith’s attorneys wrote.
Smith led the Justice Department probes of Mr. Trump related to his conduct after the 2020 presidential election, as well as his handling of classified records after his first term ended. The cases both resulted in criminal charges against Mr. Trump, and he pleaded not guilty to all charges and denied wrongdoing.
Smith’s two cases against Mr. Trump were ultimately closed last year after he won the presidential election because under Justice Department policy, sitting presidents are not prosecuted. Smith left the Justice Department shortly afterwards.
Since resigning from the Justice Department in January, Smith has been the target of investigations from Congressional Republicans like Grassley, and is being investigated for alleged illegal political activity, which his attorneys called “imaginary and unfounded.” In an interview earlier this month, Smith said that “everyone” who worked on his team was fired by the Trump Justice Department.
