Congress
Blackburn sues Jack Smith for obtaining her phone records
A close Capitol Hill ally of President Donald Trump is suing the Justice Department and former special counsel Jack Smith for obtaining her phone logs in the course of his investigation into Trump’s bid to subvert the 2020 election.
Sen. Marsha Blackburn (R-Tenn.) filed suit a day after Smith testified to the Senate Judiciary Committee — on which Blackburn sits — and defended his office’s investigation, including its effort to obtain the records of Blackburn and dozens of other GOP lawmakers who spoke with Trump and his advisers during a four-day period in January 2021.
Blackburn argues that Smith committed a “gross abuse of power” and violated constitutional protections for members of Congress when he subpoenaed her phone logs from Verizon and secured a court order to prevent the company from alerting her. She’s asking a federal judge to declare Smith’s entire probe, as well as his effort to obtain her phone records, was illegal. She’s also asking that the judge order Smith and the Justice Department destroy or return any of her materials.
Smith contended that he sought the phone logs — which don’t include the content of calls or text messages — as part of his probe into Trump’s bid to overturn the election results, even as a mob of his supporters were ransacking the Capitol on Jan. 6, 2021. Trump and his aides continued to work the phones that night and encourage lawmakers to derail the transfer of power to Joe Biden.
Smith insisted that his effort to obtain lawmakers’ phone records was cleared by the Justice Department’s Public Integrity Section and complied with all department regulations.
But senators said his effort to obtain those call records ran afoul of the Constitution’s speech or debate clause, which provides blanket immunity for lawmakers from being scrutinized by prosecutors for their official business.
Stan Brand, former counsel to the House of Representatives under former Speaker Tip O’Neill (D-Mass.), said Blackburn may have a worthy case to test whether members of Congress can win legal relief for violations of the speech or debate clause. That issue is more commonly litigated during criminal cases and before investigators can access members’ records. But in this case, Brand said, the purported violation had already occurred without her knowledge.
“How do you remedy that after the fact?” Brand said. “I think it’s worthy of consideration.”
Blackburn’s lawsuit could put the Justice Department in a bind. Though Trump himself has attacked Smith’s investigation as unconstitutional — and U.S. District Judge Aileen Cannon concluded Smith’s appointment was illegal — the Justice Department has never conceded that point. And DOJ has long defended its practice of obtaining secrecy orders from federal courts to prevent telecom companies from disclosing subpoenas to their subscribers.
In 2023, the D.C. Circuit Court of Appeals cleared the way for Smith’s team to access a subset of records it seized from Rep. Scott Perry’s (R-Pa.) phone, though it ruled that courts had to conduct a “fact-specific” inquiry to determine whether some records were “legislative” in nature and therefore off-limits to investigators.