Former Special Counsel Jack Smith prepares to testify during a hearing before the House Judiciary Committee in the Rayburn House Office Building on Capitol Hill on January 22, 2026 in Washington, DC. Smith testified on his team’s federal criminal investigations into President Donald Trump which included 2020 election interference and classified documents. (Photo by Alex Wong/Getty Images)
Former special counsel Jack Smith and the Biden administration’s Department of Justice violated the DOJ’s policies with respect to separation of powers, according to a House report released Wednesday.
Smith, appointed in 2022 by Attorney General Merrick Garland to investigate Donald Trump, expanded his investigation into members of Congress who communicated with then-first-term President Trump over his disputes regarding the results of the 2020 election.
Investigators gained access to the phone records of more than a dozen Republican lawmakers.
“During the Biden-Harris DOJ’s investigation of the 2020 election, codenamed Arctic Frost, and the subsequent special counsel investigation, investigators unconstitutionally subpoenaed phone records for over a dozen Republican members of Congress and obtained gag orders to prevent the Members from knowing that the Biden-Harris Administration had obtained these records,” the resport stated.
The report adds that the Biden DOJ “violated the Constitution’s Speech or Debate Clause.”
The report says, “Federal courts interpret the Speech or Debate Clause to place an ‘absolute’ bar on compelled disclosure of a member’s ‘legislative material.’”
The report notes that Smith privately told Attorney General Merrick Garland that members of Congress “likely have a valid Speech or Debate privilege immunizing them from compelled testimony.” However, Garland gave his “blessing” for Smith to pursue the records.
“At best, these prosecutors ignored key legislative protections enshrined in the Constitution to guarantee that Members of Congress may freely deliberate on the questions of public policy,” the report states. “At worst—which seems likely in context with the other abuses of Special Counsel Smith’s office—these prosecutors weaponized their law-enforcement authority to violate a key constitutional provision to gather reams of information about their Administration’s political adversaries.”
The report continues: “The evidence available to the Committee shows that Special Counsel Smith’s team barely considered the constitutional protections surrounding this material—and to the extent that it did, it concluded that its subpoenas might be unconstitutional. Yet, Special Counsel Smith’s team forged ahead and issued the subpoenas.”
In July, the House Judiciary Committee passed the Congressional Records Protection Act, introduced by Rep. Mike Kelly, R-Pa., aimed at protecting the separation of powers in the Constitution and ending the weaponized surveillance of members of Congress.
The Daily Signal reached out to the law firm of Heaphy, Smith, Harbach & Windom, where Smith is a partner, for comment. No one responded by publication time.
