WASHINGTON — Jack Smith admitted that judges weren’t made aware his team was seizing Republicans’ phone records when asked to sign off on non-disclosure orders for associated subpoenas, according to a transcript of the ex-special counsel’s deposition released Wednesday.
Smith claimed to members of the House Judiciary Committee in the Dec. 17 sitdown that keeping the subpoenas — which were part of the FBI’s sprawling Arctic Frost probe into 2020 election interference — hidden was necessary to avoid a “grave risk of obstruction of justice.”
Asked by an unidentified Judiciary Committee questioner whether judges who approved the subpoenas knew they were demanding that phone carriers AT&T and Verizon hand over lawmakers’ call logs, Smith said: “I don’t think we identified that, because I don’t think that was Department policy at the time.”
Judiciary members pushed back that Smith’s team risked infringing on constitutional “speech or debate protections” for lawmakers, around a dozen of whom — including former House Speaker Kevin McCarthy (R-Calif.) and the panel’s chairman, Jim Jordan (R-Ohio) — had their cellphone metadata taken.
The FBI also surveilled Rep. Scott Perry (R-Pa.) at his congressional office and home before nabbing his cellphone, per unclassified bureau records first obtained by The Post, the only known seizure of a lawmaker’s device during the Arctic Frost investigation overseen by Smith.
“When it comes to Members of Congress, though, there are, you know, the Speech or Debate protections, which you totally sidestepped,” one unidentified questioner pressed the former special counsel.
“I mean, the toll records provide enormous valuable information, because it shows who a Member of Congress, who a Senator is taking calls from and who they’re calling,” the questioner continued.
“And if you map it up against the Senate or the House calendar, you can see, you know, what the inputs are to their legislative decision-making, which is at the core of Speech or Debate. Do you agree with that?” the interlocutor asked.
“My office and I personally take the protections of the Speech or Debate Clause seriously,” Smith replied. “I think they’re part of our Constitution. They’re an important part of separation of powers.”
“And when we sought these subpoenas, we got approval from [the Department of Justice’s] Public Integrity [Section], who are the sort of keepers of that issue, and they concurred in us getting these subpoenas,” he added.
“They did,” his questioner fired back. “And we saw some of that email traffic, and I would respectfully disagree with their view of the Speech or Debate law, as you might imagine.”
Smith testified that the non-disclosure orders — which are requested when prosecutors believe there is a risk of flight, destruction of evidence, witness intimidation or jeopardy to the case — were not “based on an allegation that necessarily the person who has the phone is personally going to obstruct the investigation.”
“It’s that if this gets out, people could obstruct the investigation,” he said.
Aside from Jordan, McCarthy and Perry, the lawmakers who were targeted by the the DOJ include Sens. Marsha Blackburn (R-Tenn.), Bill Hagerty (R-Tenn.), Rick Scott (R-Fla.), Lindsey Graham (R-SC), Josh Hawley (R-Mo.), Tommy Tuberville (R-Ala.), Ron Johnson (R-Wis.), Dan Sullivan (R-Alaska), Cynthia Lummis (R-Wyo.) and Rep. Mike Kelly (R-Pa.).
The incensed lawmakers have called for federal District Court Judge James Boasberg in Washington, DC, to be impeached for granting the phone record requests — though Smith’s testimony suggests that the judge may not have been aware of the named targets.
Senators who were spied on could be awarded up to $500,000 each if their electronic records were seized without notification, thanks to a provision tucked into a bill signed into law by President Trump this fall to end the longest government shutdown in US history.
Jordan earlier in the deposition confronted Smith about his own phone records being sought over a two-year period starting in January 2020 — and suggested that the DOJ’s Public Integrity Section’s analysis of the legal risk did not exonerate the former special counsel from potential constitutional issues.
“[T]he assessment is, as described it, pretty cursory,” the Judiciary chairman said. “We’re not going to charge anyone. We’re not going to get sued. They’re not going to know. Who cares about Speech or Debate? That’s what the assessment looks like to me. Can you respond?”
“Chairman, I would disagree with that characterization of it,” Smith answered, adding shortly after that his office didn’t consult with the DOJ’s Office of Legal Counsel or the Solicitor General and couldn’t say whether past circuit court rulings or legal precedent were taken into account.
The former special counsel repeatedly emphasized that the seizure of all phone records was lawful.
“We got these records in a manner that was consistent with the law and consistent with Department policy. There was nothing improper about how we got these records,” he said of the subpoena for McCarthy’s call information.
Smith also said he wasn’t “involved” in the Perry or Jordan subpoenas since both were issued before he was made special counsel.
Elsewhere in the deposition, Smith claimed he did not “recall,” “remember” or “know” dozens of other important details about the twin investigations he oversaw starting in 2022 into Trump’s alleged efforts to reverse 2020 election results and to allegedly hoard classified documents at his Mar-a-Lago residence.
Both cases were tossed by the time the 47th president entered the White House in January 2025; in the classified documents prosecution, that was because a federal judge ruled that Smith had been improperly appointed without a vote of Congress.
The then-special prosecutor also voluntarily withdrew the 2020 election interference case — but maintained in the deposition that the DC-based case and the Florida-based one would’ve both resulted in convictions.
“I believe we had proof beyond a reasonable doubt in both cases,” Smith told the Judiciary Committee.
