Special counsel Jack Smith’s team, which was pursuing Donald Trump in the period between his presidencies, obtained two secret subpoenas for phone records from Kash Patel, the man who would go on to become head of the FBI.
New documents released Tuesday also show the deliberations within the Justice Department as Mr. Smith’s team secretly sought phone records from sitting members of Congress, even as they acknowledged thorny constitutional lines in trying to get ahold of lawmakers’ data.
The documents include an initial target list of 14 lawmakers Mr. Smith’s team believed were communicating with President Trump and his team surrounding the 2020 election and the events of Jan. 6, 2021.
“Overall, the records create additional questions about Smith’s conduct, need for member data and candor to the court and the public,” said Sen. Charles E. Grassley, the Iowa Republican who released the new documents.
He released the documents ahead of a hearing into the anti-Trump probe, known inside the FBI as “Arctic Frost,” which became Mr. Smith’s special counsel investigation.
Mr. Smith would go on to win two criminal indictments against Mr. Trump, one in Florida accusing him of mishandling classified documents and one in Washington accusing him of attempting to undermine the 2020 election results.
The Florida case would be tossed by a judge who said Mr. Smith was wrongly appointed. The Washington case was delayed by an adverse Supreme Court ruling, and then both cases were ended by Mr. Trump’s 2024 victory.
The previous revelation that Mr. Smith had sought phone records — call numbers, dates and times — of members of Congress provoked fury on the right, though Democrats and Mr. Smith defended the practice as within Justice Department rules.
According to the new documents, Mr. Smith’s team met with the solicitor general at the time, Elizabeth Prelogar, to talk about the issues involved with pursuing records of members of Congress.
Mr. Smith’s team also held meetings with then-Chief Judge Beryl Howell on the U.S. District Court for the District of Columbia, and Judge James Boasberg, to talk about Trump officials’ claims of executive privilege. Both of those jurists have emerged as particular legal roadblocks for the new Trump administration.
The 14 lawmakers on the target list from early 2023 were: Former Rep. Brian Babin of Texas, Rep. Andy Biggs of Arizona, former Rep. Mo Brooks of Alabama, former Rep. Matt Gaetz of Florida, former Rep. Jody Hice of Georgia, Rep. Paul Gosar of Arizona, former Rep. Louie Gohmert of Texas, Sen. Mike Lee of Utah, Sen. Dan Sullivan of Alaska, Sens. Marsha Blackburn and Bill Hagerty of Tennessee, Sen. Lindsey Graham of South Carolina, Sen. Ted Cruz of Texas and former Rep. Lee Zeldin of New York, who is now head of the Environmental Protection Agency.
The documents show the FBI already had records from Reps. Scott Perry and Jim Jordan at the time.
Mr. Cruz, who chaired a hearing on the Smith investigation Tuesday, called it a “modern Watergate,” but said this one was worse, going beyond a break-in at a party office to encompass a mass sweep of sitting lawmakers’ communications.
The Patel subpoenas sought Verizon’s records on the devices he owned and records of his incoming or outgoing calls, text messages and voicemails.
FBI spokesman Ben Williamson told Reuters the records exposed improper behavior.
“The FBI under prior leadership was weaponized in ways the American people are only now beginning to fully grasp,” he said.
Democrats, for their part, called Tuesday’s hearing a distraction from important issues. Sen. Richard Durbin, the top Democrat on the Senate Judiciary Committee, said he’d rather be asking questions about Mr. Patel’s purge of personnel at the FBI associated with the Jan. 6 and Arctic Frost probes.
“Several of the fired agents were reportedly part of a global counterintelligence squad,” the Illinois lawmaker said. “In other words, Director Patel’s political retribution has weakened the FBI’s ability to counter Iranian threats at the exact time that not only America but certainly the men and women in uniform needed them to keep themselves safe.”
Mr. Smith testified in January to the House Judiciary Committee on his efforts, defending his pursuit of Mr. Trump and saying he stood by his belief that the president engaged in criminal behavior.
Senate Democrats have demanded a similar hearing with Mr. Smith in their committee, but Mr. Grassley, chairman of the panel, has said that they must wait as more evidence comes out.
He said Tuesday that the latest documents show waiting was the right call.
“If we’d followed the Democrats’ premature and ill-advised strategy, we wouldn’t have had a great deal of information we now have that shows Jack Smith misled Congress and the public, if not outright lied,” Mr. Grassley said.
