‘Blew Through Constitutional Stop Signs’: Jack Smith Obtained Review Texts of 44 Lawmakers, DOJ Records Show

Former special counsel Jack Smith’s team in 2023 bypassed certain procedures to obtain and review text messages from 44 members of Congress in an investigation of President Donald Trump, according to Justice Department documents released by senators Tuesday.

The Justice Department must follow a filter review process when obtaining documents or communications related to members of Congress, under the principle of separation of powers and to prevent privileged materials from being swept up in a criminal prosecution. Communications from members of Congress about their official legislative duties are generally protected from criminal prosecution under the Constitution’s speech or debate clause.

A letter from Assistant Attorney General Patrick Davis to Senate Judiciary Chairman Chuck Grassley, R-Iowa, and Senate Permanent Subcommittee on Investigations Chairman Ron Johnson, R-Wis., stated that “the special counsel’s Investigative Team apparently bypassed the Filter Team and directly accessed these text messages.” The Justice Department attached documents to the letter outlining the Filter Team’s review process.

Grassley noted the matter Wednesday morning in his opening remarks at the confirmation hearing for Todd Blanche to be attorney general.

“Based on the information provided to the committee, Smith’s operation cut corners and blew through constitutional stop signs, instead of respecting them, and has been advised about the constitutional problems,” Grassley said during the Senate Judiciary Committee hearing.

“Even if Smith’s team had been instructed to look for congressional or other privileged information, it wouldn’t matter. Because in this example, it appears the filter routine was entirely bypassed.”

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Smith investigated Trump’s challenge to the outcome of his 2020 election loss to Joe Biden, as well as Trump’s retention of government documents at his home in Mar-a-Lago. The text messages obtained by Smith’s team appear to be related to the election probe.

“This is yet another grotesque example of the Biden administration’s weaponization of the Justice Department,” Johnson said in a public statement Tuesday. “Jack Smith’s team acted with impunity as they disregarded their own protocols to obtain and access White House text messages, including messages to and from 44 members of Congress. At this point, no one should be shocked by Jack Smith’s recklessness and blatant abuse of power, but they should be outraged.”

Of the 44 lawmakers whose records were obtained by Smith’s team, 40 were Republicans, including Grassley and Johnson. The records also involved four Democrats: Sen. Cory Booker of New Jersey; Reps. Adam Smith of Washington and Josh Gottheimer of New Jersey; and then-Rep. Karen Bass of California, now the mayor of Los Angeles.

During Wednesday’s hearing, Sen. Dick Durbin, D-Ill., Senate Judiciary Committee ranking member, defended Smith.

“Perhaps six months ago, maybe longer, he volunteered to appear before this committee under oath and testify about what he did as special counsel, and to answer the questions of the committee,” Durbin said. “For reasons I cannot explain, the Republican majority does not want to bring Jack Smith before this committee and having testified under oath. They continue on a regular basis to take exception to things that he said or did or allegedly did.”

According to the Justice Department documents, of the texts obtained, 20 were from senators, and the rest were from House members. Not all Republicans involved in the probe were entirely pro-Trump. For example, Sen. Susan Collins of Maine and Rep. Thomas Massie of Kentucky have frequently voted against Trump’s policies, but their texts were nevertheless swept up in the investigation.

In June 2023, the special counsel’s office subpoenaed the National Archives and Records Administration to provide all text messages from October 2020 through Jan. 20, 2021, from phones associated with White House staff during Trump’s first term, including Trump himself; former Vice President Mike Pence; former White House chief of staff Mark Meadows; senior administration officials and Trump associates Dan Scavino, Ivanka Trump, Stephen Miller, Peter Navarro, John Ratcliffe, Kash Patel, Rudy Giuliani, and Kellyanne Conway.

The Daily Signal reached out to Smith’s current law firm, Heaphy, Smith, Harbach & Windom, for comment. Smith or a spokesperson did not respond by publication time.