Former special counsel Jack Smith’s investigative team obtained and reviewed text messages from 44 members of Congress—40 Republicans and 4 Democrats—as part of his criminal investigation into President Donald Trump’s attempts to overturn the 2020 election, according to newly released records disclosed on July 14 by Senate Judiciary Chair Chuck Grassley and Senate Permanent Subcommittee on Investigations Chair Ron Johnson.
The National Archives and Records Administration provided the text messages to Smith’s team on August 21, 2023, following a subpoena for communications from October 2020 through January 20, 2021, from phones used by Trump and his senior officials. Within half an hour, one of Smith’s senior lawyers, Thomas Windom, downloaded the texts, and within one hour, other members of Smith’s investigative team downloaded and began reviewing them, according to the Grassley press release and internal Justice Department records released Tuesday.
The revelation centers on whether Smith’s team properly followed established protocols designed to protect privileged information. The Justice Department had established a Filter Team to evaluate materials and prevent investigators from accessing privileged materials, including attorney-client communications and other protected information. According to the released records, Smith’s investigative team apparently bypassed this Filter Team and directly accessed the text messages without waiting for the filtering process to be completed.
The lawmakers whose messages were obtained included current and former senators and House members from both parties. Among them were Republican senators Chuck Grassley, Ron Johnson, John Cornyn, Lindsey Graham, and Josh Hawley, as well as Democratic senators Cory Booker. House members included former GOP Leader Kevin McCarthy, Jim Jordan, and Devin Nunes. Democratic representatives whose texts were obtained included Adam Smith, Joshua Gottheimer, and Karen Bass.
Smith’s investigation examined Trump’s communications with White House officials during the final weeks of his first term, as prosecutors built their case on Trump’s efforts to reverse his 2020 election defeat and his alleged mishandling of classified documents. Smith was appointed as special counsel in November 2022 by Attorney General Merrick Garland to oversee two preexisting Justice Department criminal investigations into Trump. Both cases were ultimately dropped after Trump won the 2024 election.
Grassley characterized the team’s actions as a breach of constitutional protections. Communications from members of Congress related to their official legislative duties are protected under the Constitution’s Speech or Debate Clause, which prevents the Executive Branch from using its prosecutorial power to interfere with lawmakers’ legislative work. Grassley stated that Smith’s team “acted with impunity as they disregarded their own protocols to obtain and access White House text messages,” and announced his intention to call Smith before the Senate Judiciary Committee to testify about the disclosures.
Ron Johnson echoed the criticism, calling the actions “a grotesque example of the Biden administration’s weaponization of the Justice Department.” Both senators described the episode as evidence that Smith’s investigation operated without proper oversight or restraint during the Biden administration.
A spokesman for Smith did not immediately respond to requests for comment. In prior testimony before the House Judiciary Committee earlier this year, Smith has argued that his investigations followed Justice Department policy and were not influenced by politics. Smith previously told a House committee that lawmakers’ phone records were necessary to investigate Trump’s pressure campaign to stop certification of his election defeat.
Sources
- Senator Grassley (.gov) — Official press release detailing the text message disclosures, the names of the 44 lawmakers, timeline of access, and the Filter Team bypass
- Politico — Reporting on Grassley’s disclosure and the context of Smith’s investigation into Trump’s attempts to overturn the 2020 election
- Reuters — Confirmation of the 44 lawmakers affected and the breakdown of 40 Republicans and 4 Democrats
