Senators will not be able to personally profit from a new law allowing them to sue the government for damages if their phone records are accessed for a federal investigation without their knowledge.
Senate Majority Leader John Thune, South Dakota Republican, said Thursday that any damages awarded under the provision, which he pushed as a response to the recent revelation that Republican senators’ phone records were secretly subpoenaed in the Biden-era Arctic Frost investigation, would go to the U.S. Treasury.
“The measure was never meant to enrich senators,” Mr. Thune said. “It’s always been true under our rules that members wouldn’t keep damages they recover under this measure.”
Mr. Thune’s clarification came after a week of bipartisan uproar over the provision that was added to the spending deal to reopen the government.
The House voted unanimously on Wednesday to repeal the new law, and Senate Democrats pushed to pass it on Thursday. Mr. Thune’s clarification was part of the effort to squash that bill.
It started as Sen. Martin Heinreich, New Mexico Democrat, tried to pass the House bill by unanimous consent, as he slammed the new law as “a blatant tax-funded cash grab.”
“This provision allows eight Republican senators to collect millions of dollars from the U.S. government when what the Department of Justice did was to lawfully subpoena those phone records during a grand jury investigation,” he said.
Sen. Lindsey Graham objected to the unanimous consent request, disputing that the subpoena was lawful. The South Carolina senator is one of the Republicans whose phone records were secretly accessed by former special counsel Jack Smith as he investigated Mr. Trump’s challenges to the 2020 election results.
“What did we do to justify having Jack Smith issue a subpoena for the phone records of a branch of government, the Senate, where all of us had to decide whether or not to certify the election,” he said.
He said the subpoena and a court order from District Court Judge James Boasberg blocking the affected lawmakers from being notified by the phone companies violates existing law.
The provision added to the spending bill builds on that law, which says any communications provider serving the Senate office “shall not be barred, through operation of any court order or any statutory provision, from notifying the Senate office of any legal process seeking disclosure of Senate data.”
The new law clarifies that telecom providers are required to notify Senate offices if they receive a subpoena or another legal request for Senate data. If the notification requirement is violated in relation to federal investigations, senators can sue the government for up to $500,000 in damages for each violation.
Mr. Thune sought unanimous consent to adopt a resolution clarifying that any damages senators are awarded under the new law must be forfeited to the Treasury because of the Senate’s conflict of interest rules.
The rules state that senators shall not receive any form of compensation from any source “that would occur by virtue of influence improperly exerted from his position.”
Senators are also barred from introducing or aiding in the passage of legislation that is principally designed to further their financial interest, but Mr. Thune said that was not the goal in this case.
“It’s an important defense of separation of powers,” he said, noting it protects both parties “from a weaponized Department of Justice that is pursuing political enemies.”
Mr. Heinrich objected to Mr. Thune’s unanimous consent request, saying there should be a statutory change to clarify the intent, not a nonbinding resolution.
Mr. Thune expressed openness to strengthening the law as more information about the Arctic Frost investigation is being uncovered, noting House lawmakers will probably want the same protection the law provides to senators.
Mr. Graham has proposed broadening the remedy to include any individual or organization that was targeted.
“If they can do this to a United States senator, what can they do to you?” he said. “Maybe somebody at the Department of Justice doesn’t like your post or political activity, and they want to shut you down and find out who you’ve been talking to. This is scary stuff.”
