Lawmakers grilled former special counsel Jack Smith on Thursday for scooping up phone records of members of Congress while concealing his targets from a judge.
Smith testified publicly before the House Judiciary Committee after giving a private deposition last month, regarding his near two-year probe of then-former President Donald Trump. Smith’s investigation focused on alleged possession of classified documents after leaving office, and Trump’s alleged lying about the 2020 election. Smith secured indictments in both investigations.
During the investigation, Smith approved subpoenas for phone communications of members of Congress. His team subpoenaed the phone records of former House Speaker Kevin McCarthy, R-Calif.; House Judiciary Chairman Jim Jordan, R-Ohio, as well as eight Republican senators.
Smith said his staff prosecutors didn’t tell judges signing the subpoenas that the special counsel’s office was seeking records from members of Congress.
Rep. Darrell Issa, R-Calif., the committee’s senior member, said Smith violated the separation of powers in acting as a member of the executive branch to obtain phone records from the legislative branch while withholding information from the judicial branch.
“You, like the president’s men for Richard Nixon, went after your political enemies,” Issa said to Smith. Issa had a board behind him listing the members of Congress whose records were subpoenaed that read, “Biden’s enemies list.”
“They’re not your political enemies, but they sure as hell were Joe Biden’s political enemies, weren’t they? They were Harris’s political enemies. They were the enemies of the president, and you were their arm.”
Ranking member Rep. Jamie Raskin, D-Md., interrupted Issa. After a heated exchange, Smith acknowledged not revealing the members’ names to the judge, but added that he was not required to do so.
“We did not provide that information to the judge when we requested a non-disclosure order consistent with the law and consistent with department,” Smith replied.
Smith’s targets also included eight Republican senators: Lindsey Graham, R-S.C.; Bill Hagerty and Marsha Blackburn of Tennessee; Josh Hawley of Missouri; Dan Sullivan of Alaska; Tommy Tuberville of Alabama; Ron Johnson of Wisconsin; and Cynthia Lummis of Wyoming.
Raskin pushed back on GOP criticism of Smith’s subpoena of congressional phone records.
“So, it’s perfectly lawful what you did. Explain why you wanted those toll records?” Raskin asked Smith.
“We wanted to conduct a thorough investigation of the matters that were assigned to me, including the attempts to interfere with the lawful transfer of power,” Smith said. “For the conspiracy that we were investigating, it was relevant to get full records to understand the scope of that conspiracy.”
Raskin followed, “That’s normal investigative practice, right?”
Smith said, “In conducting a criminal investigation, securing non-content toll records, as you described, is a common practice in almost any complex concern.”
Smith was named special counsel in November 2022 to conduct the Justice Department’s investigation of Trump’s challenge to the outcome of the 2020 election, as well as allegations of mishandling of classified information after leaving office.
