Why It Matters

Allegations that former special counsel Jack Smith's team improperly obtained phone records and text messages involving members of Congress sit at the center of a scheduled Senate Judiciary Committee hearing. A central constitutional question is whether investigative steps involving lawmakers' communications violated the Speech or Debate Clause of the U.S. Constitution, which protects legislative acts from executive or judicial interference.

The Senate Judiciary Committee hearing, titled "Oversight Hearings To Examine Jack Smith's Authority And Republicans And Related Matters," is scheduled for Sept. 29, with Sen. Chuck Grassley (R-IA) serving as chair and Sen. Dick Durbin (D-IL) as ranking member.

Broader Context.

The hearing follows investigative actions by the House Judiciary Committee. On Sept. 22, the committee released transcripts of interviews with five former prosecutors who worked under Smith and one former Department of Justice (DOJ) Office of the Inspector General agent concerning the Arctic Frost investigation. House Judiciary Republicans alleged that investigators improperly subpoenaed phone records associated with more than a dozen Republican members of Congress and obtained nondisclosure orders that prevented lawmakers from learning that the records had been sought.

The following day, House Judiciary Republicans released a 56-page interim staff report alleging that investigators obtained phone records associated with Republican members of Congress and reviewed text-message content involving 44 members as part of the DOJ investigation codenamed "Arctic Frost." The report further alleged that Smith's team recognized that some investigative steps could raise constitutional concerns under the Speech or Debate Clause but proceeded with subpoenas.

House Judiciary Committee Chair Jim Jordan (R-OH) said: "Members of Congress' communications are protected under the Speech or Debate Clause. Jack Smith knows this. But he ignored the Constitution to spy on Republicans." Those assertions are allegations by Jordan and House Judiciary Republicans and have not been established by a court.

The constitutional and legal characterization is disputed. Senate Judiciary Democrats have argued that prosecutors used a legal process authorized by Congress to obtain toll records as part of the investigation into efforts to overturn the 2020 presidential election. Durbin has also repeatedly called for Smith to testify publicly under oath about Arctic Frost and his work as special counsel.

Separately, on Sept. 17, Smith appeared at Dartmouth College, where he criticized the current Justice Department and said it had experienced a "tremendous loss of credibility." Smith argued that DOJ credibility had been damaged by what he characterized as politically motivated prosecutions and a departure from the department's traditional independence.

The Bottom Line

Grassley and Sen. Ron Johnson (R-WI), chair of the Senate Permanent Subcommittee on Investigations, have conducted oversight of Arctic Frost and released records concerning investigative steps involving members of Congress. Grassley has said Smith's team obtained text messages that 44 members of Congress sent to White House officials during the period leading up to and surrounding Jan. 6, 2021. Grassley has also said investigators obtained phone toll records associated with members of Congress and other individuals and entities as part of Arctic Frost.

The Sept. 29 hearing will give the Senate Judiciary Committee another opportunity to examine Smith's authority and the investigative methods used in Arctic Frost amid competing claims over whether those methods infringed lawmakers' constitutional protections or represented lawful investigative activity.

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