Former Special Counsel Jack Smith is defending his decision to subpoena the private phone records of multiple Republican lawmakers during his 2023 “investigation” into President Donald Trump, insisting the move was “entirely proper” and consistent with Justice Department policy.
In a letter sent to Senate Judiciary Committee Chairman Chuck Grassley (R-IA) on Tuesday, Smith’s attorneys claimed the records were “narrowly tailored” and “carefully targeted” as part of the FBI’s “Arctic Frost” probe into what prosecutors alleged was Trump’s effort to overturn the 2020 election.
“As described by various Senators, the toll data collection was narrowly tailored and limited to the four days from January 4, 2021, to January 7, 2021,” Smith’s lawyers wrote.
“The focus was on telephonic activity during the period immediately surrounding the January 6 riots at the U.S. Capitol.”
“Toll records” do not contain the content of calls but reveal who lawmakers spoke with and when.
Smith’s office subpoenaed the phone data of eight Republican senators and one House member.
The move was an unprecedented step that critics say crossed a constitutional line.
Among the targeted senators were Marsha Blackburn (R-TN), Josh Hawley (R-MO), and Lindsey Graham (R-SC).
Sen. Ted Cruz (R-TX) told Fox News’s Sean Hannity this week that he later discovered Smith had also attempted to obtain his phone records.
However, Cruz said his provider, AT&T, “did not hand them over.”
Grassley: “Smells Like Politics”
Se. Grassley, who first exposed the existence of the subpoenas, responded to Smith’s letter on X, promising to continue what he called an objective investigation into potential abuses of power.
“I’m conducting an objective assessment of the facts & law like he says he wants,” Grassley wrote.
“So far, we exposed an anti-Trump FBI agent started the investigation, broke FBI rules & only REPUBLICANS were targeted.
“SMELLS LIKE POLITICS.”
The Iowa Republican has accused Smith and the FBI of weaponizing federal surveillance tools against lawmakers from one party, comparing the operation to a modern-day Watergate.
Smith Insists Lawmakers Aren’t Immune
Smith’s legal team dismissed accusations of political targeting, saying that “public officials are not immune from investigation” and that such subpoenas are standard practice in criminal probes.
They also denied allegations from FBI Director Kash Patel that Smith tried to conceal the subpoenas “in a lockbox in a vault.”
“The former special counsel referenced the subpoenas in a footnote of his final report,” Smith’s lawyers wrote.
“Moreover, the precise records at issue were produced in discovery to President Trump’s personal lawyers, some of whom now serve in senior positions within the Department of Justice.”
Pattern of Politicized Surveillance
Smith’s defense comes amid mounting scrutiny of the Justice Department’s history of secretly obtaining lawmakers’ communications, often under the pretext of leak or national security investigations.
Former DOJ Inspector General Michael Horowitz previously warned that such actions risk “chilling Congress’s ability to conduct oversight of the executive branch.”
Similar subpoenas were issued under previous administrations, including a Trump-era DOJ investigation that sought phone data from Rep. Adam Schiff (D-CA) and Rep. Eric Swalwell (D-CA), both outspoken critics of Trump.
Smith’s investigation ultimately produced four criminal charges against Trump over alleged election interference.
Those charges were later dismissed after Trump’s 2024 re-election, in accordance with a Justice Department policy discouraging prosecution of sitting presidents.
Broader Fallout
The Arctic Frost operation, and Smith’s continued defense of it, has deepened Republican concerns about political surveillance and selective justice within the federal system.
Critics argue that Smith’s decision to target lawmakers during a politically charged investigation represents a dangerous precedent, one that undermines the separation of powers and fuels further distrust of the Justice Department’s independence.
Grassley’s investigation remains ongoing.
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