Former Special Counsel Jack Smith’s investigative team obtained and reviewed text messages from 44 members of Congress during the Trump probe, bypassing a required review process meant to protect privileged communications, according to records released by Senator Chuck Grassley on July 14.
The texts, obtained through subpoenas to the National Archives and Records Administration, included messages from 40 Republican lawmakers and four Democrats exchanged with Trump administration officials between October 2020 and January 20, 2021, according to Reuters and Grassley’s press release. The lawmakers included senators such as Grassley himself, Ron Johnson, John Cornyn, Lindsey Graham, and Josh Hawley, as well as House members including Kevin McCarthy and Jim Jordan.
The disclosure centers on a procedural violation. Grassley’s office states that Smith’s team “bypassed” a Filter Team established to screen materials for legal privileges before investigators accessed them. According to the Grassley press release, senior lawyer Thomas Windom downloaded the texts within half an hour of receiving them from the National Archives on August 21, 2023, and other team members began reviewing them within an hour—apparently without waiting for the Filter Team to evaluate and segregate privileged information.
The Filter Team existed to protect attorney-client privilege and other sensitive materials from being swept into a criminal investigation. “Bypassing a Filter Team evades consideration of additional privileges, such as attorney-client privilege,” Grassley’s office stated. Communications from members of Congress pertaining to their official legislative duties are protected under the Constitution’s Speech or Debate Clause, which shields lawmakers from prosecution for actions taken in their legislative capacity.
Grassley said he intends to call Smith before the Senate Judiciary Committee to account for the practice. “Jack Smith’s criminal investigation of President Trump was a runaway train that had no brakes,” Grassley said in his statement. “Based on the information that’s been produced to me and Senator Johnson, Biden DOJ and FBI investigators apparently ignored their own routine investigative protocols to obtain and review work-related messages from me and dozens of my Republican and Democrat colleagues.”
Smith has previously defended his investigation as following Justice Department policy and being free from political influence. Reuters reported that Smith argued in court filings and public testimony that his investigations followed standard protocols. A spokesman for Smith did not immediately respond to requests for comment on the disclosure.
The records were released as part of an oversight effort called “Arctic Frost,” led by Grassley and Johnson following whistleblower disclosures. Smith’s investigation examined Trump’s attempts to overturn the 2020 election and his handling of classified documents at Mar-a-Lago; both cases were dropped after Trump won the 2024 election.
Sources
- Senator Grassley (.gov) — Official press release detailing the Filter Team bypass, list of 44 lawmakers, timeline of text message access, and constitutional concerns
- Reuters — Confirmation of 44 lawmakers (40 Republicans, 4 Democrats), Filter Team protocol violation, and Smith’s prior defense of investigation practices
- Politico — Reporting on Smith’s team obtaining texts from 44 members of Congress during Trump investigation
