House and Senate
Republicans targeted by former Special Counsel Jack Smith’s subpoenas
were gearing up for significant oversight of both the Justice Department
and the FBI when their phone records were seized.
This raises questions about whether the subpoenas served a
dual purpose—to investigate Jan. 6, as Smith was appointed to do, and to
keep tabs on the oversight probes into agency conduct, one former
representative whose phone records were seized by Smith suggested.
“They were trying to spy on us to see what we were doing,” former Rep. Louie Gohmert told the John Solomon Reports podcast.
“And also, I think they were looking for anything that they could use
to come after us, or hold over our heads, because, you know, you can
intimidate the people that are coming after you.”
Gohmert, who left Congress in 2023, was deeply involved
with probes of the FBI and Justice Department from his role on the House
Judiciary Committee.
Earlier this fall, the FBI transferred documents to Congress showing that then-Special Counsel Smith had subpoenaed the phone records of eight GOP U.S. senators and one House member related to his probe into the Jan. 6 Capitol riots, dubbed Arctic Frost.
The document was located in a prohibited access file at the
bureau in response to oversight requests from one of the targets,
Republican Chuck Grassley, Chairman of the Senate Judiciary Committee.
Grassley is probing Smith’s tenure as special counsel.
Smith’s targeting of Republican officials was only part of
the wide dragnet his investigative team cast over the Trump-aligned
movement in the wake of his appointment by the Biden Justice Department.
In late October, Grassley made public nearly 200 subpoenas issued by Smith’s team seeking records on more than 400 Republican personalities and groups, Just the News previously reported.
Since the initial revelation, both the FBI and Congress
have uncovered more subpoenas targeting then-House Speaker Kevin
McCarthy, Gohmert, and House Judiciary Committee Chairman Jim Jordan.
The subpoena for Jordan’s phone records is unique in that
it covered an expansive two-year period, long after the Jan. 6 Capitol
riot took place. The subpoena, issued on April 25, 2022, called for all
phone communications from Jan. 1, 2020 to that present day, sweeping up
data that fell far outside the incident and surrounding events that
Smith was allegedly investigating.
You can read the subpoena, released by Jordan, below:
Strikingly, Smith’s team issued the subpoena for Jordan’s
phone records as his committee was receiving whistleblower accounts of
politicization across the FBI under the Biden administration and
Director Christopher Wray, ranging from alleged manipulation of domestic
extremism statistics to purging employees who held conservative
political views.
In November 2022, the Judiciary Committee released a report that shared the concerns from FBI whistleblowers
that had approached the panel within the past year, beginning before
Smith’s appointment as special counsel by the Justice Department.
Based on the committee’s materials, it is clear that the
panel was ramping up investigations of both the FBI and the Justice
Department at the time when Smith’s team issued the subpoena for
Jordan’s records.
On April 26, 2022, just one day after the subpoena, Jordan
wrote Justice Department Inspector General Michael Horowitz asking him
to look into a whistleblower complaint that the FBI had improperly
suspended several employees’ security clearances for constitutionally
protected political activity on Jan. 6.
Jordan questions whether FBI was engaging in retaliatory actions
According to Jordan, the employees who attended a public
event on Jan. 6 in Washington, D.C., have not been charged with any
crimes, and “did not enter the United States Capitol.” Yet, the FBI used
these facts to question these employees’ allegiance to the country,
citing “Adjudicative Guideline A — Allegiance to the United States” in
FBI regulations.
“The FBI’s personnel actions against these employees
therefore raise concerns that the Bureau may be taking significant steps
toward firing these employees as retaliation for disfavored political
speech,” Jordan wrote in that letter to Horowitz.
The Judiciary Committee report detailed further whistleblower complaints in the same period, including allegations that the FBI inflated its domestic violent extremism data, the Justice Department used counterterrorism resources to investigate parents protesting school policies, and concerns about the “the FBI’s lackluster investigation” into the Jan. 6 pipe bombs.
Former Rep. Gohmert said that the seizure of Jordan’s phone
records at a time when he was overseeing substantial investigations
into the FBI and Justice Department raises constitutional concerns. It
also endangers Congress’ oversight by undermining confidence that
potential whistleblowers’ information and identities will be kept
secret.
“There's a constitutional privilege beyond the Fourth
Amendment, a congressional privilege because we have whistleblowers that
contact us,” Gohmert told Just the News.
“The DOJ, they can't just come in and seize everything in
our office. They have to go through an intermediary, like House counsel,
that sees all the information, and then make sure that those things
that are privileged, like whistleblowers who contact us from the DOJ and
FBI, that their information doesn't fall into the hands of the FBI,”
Gohmert explained.
He added, “Can you imagine being an FBI agent that just
summons up the courage to contact one of us, and then you find out, oh
my gosh, they're grabbing all their cell phone data?”
However, despite the constitutional concerns, Smith’s team
asked the court to order phone companies to keep secret the subpoenas
for Jordan’s and the senators’ phone records.
On April 29, the court ordered “Verizon Wireless […] not to
notify any other person of the existence of subpoena number
GJ2022042589990 issued by the United States on behalf of a federal Grand
Jury,” according to a sealed court document released by Jordan last month.
More than a year later, Justice Department employees
assessed that constitutional concerns about subpoenas for sitting
lawmakers’ phone data were outweighed by the fact that the agency
believed the seizures would remain secret, according to a document released by Grassley and Sen. Ron Johnson, whose phone records were also targeted.
The emails show “John Keller, principal deputy chief of the
Justice Department’s Public Integrity Section, informed one of Jack
Smith’s aides on May 17, 2023, that his office agreed with issuing
subpoenas for lawmakers’ phone records. He added, however, that forcing
the disclosure of those materials might run afoul of the Constitution’s
Speech or Debate Clause.
Nevertheless, Keller believed the likelihood that the
Justice Department would face litigation would be minimal, since the
subpoenas were likely to remain secret since no member of Congress was
expected to face any charges.
Blatant disregard for constitutional practice and balance of powers
“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 wrote.
The Justice Department’s reasoning shows a blatant
disregard for constitutional practice and balance of powers, Mike
Howell, head of the Heritage Foundation’s Oversight Project, told the John Solomon Reports podcast.
“Speaking in terms of, what's the litigation risk? What
could they even do, even if we violate this constitutional practice
here, what's the penalty? They'll never be able to do anything to us. It
speaks to a blatant disrespect for an independent branch of government,
one that they probably rightfully recognize as atrophied over time, and
being able to assert itself and hold the executive accountable,” Howell
said.
“It was not a problem whatsoever, because in the mindset of
the FBI, [the members of Congress] defined Maga, and you know,
Republicans as a domestic terrorist problem and threat, and treated them
under the powers that we give the federal government to deal with
things such as Islamic terrorism, and that's the world in which they
were operating,” Howell continued.
