A new House Judiciary Committee report alleges that former special counsel Jack Smith's team secretly obtained the phone records of 17 Republican members of Congress, a move the committee says violated the Constitution's Speech or Debate Clause.
The committee, chaired by Rep. Jim Jordan of Ohio, released the report Wednesday, charging that Smith's Biden-era prosecutors bypassed standard DOJ safeguards, used gag orders to keep their targets in the dark, and rifled through a massive trove of text messages from inside the Trump White House without waiting for a required privilege review. The investigation, codenamed "Arctic Frost," targeted Republicans connected to the 2020 election and its aftermath.
Jordan did not hold back. In a post on X, the chairman laid out the accusation directly:
"Members of Congress' communications are protected under the Speech or Debate Clause. Jack Smith knows this. But he ignored the Constitution to spy on Republicans."
The Speech or Debate Clause, written into Article I of the Constitution, shields members of Congress from executive-branch interference in their legislative work. The Founders included it so that lawmakers could represent their constituents without fear of intimidation or retaliation from the president or federal agencies. The committee report argues Smith's team treated that protection as an obstacle to route around rather than a constitutional boundary to respect.
The report details specific actions the committee says crossed the line. The DOJ obtained 27 months of phone records belonging to Jordan himself, the top Republican in the House overseeing the Justice Department. The FBI physically surveilled Rep. Scott Perry of Pennsylvania for a full week before agents seized his cellphone.
Gag orders attached to the subpoenas prevented the targeted lawmakers from learning that their records had been taken. The committee report says those gag orders kept targets in the dark "for years." As one Smith prosecutor, Assistant Special Counsel Timothy Duree, acknowledged during a transcribed interview, a nondisclosure order "will prohibit a person who holds that phone number from litigating issues surrounding the subpoena," Fox News reported.
That is a revealing admission. The gag orders did not just preserve secrecy for investigative purposes, they blocked sitting members of Congress from mounting any legal challenge to the seizure of their records.
The scope of the operation extended well beyond Congress. Sen. Chuck Grassley separately released whistleblower records showing 197 subpoenas were issued during Arctic Frost, targeting more than 430 Republican-linked individuals and entities, including financial institutions, Trump-aligned organizations, conservative think tanks, and political operatives, National Review reported.
When the committee pressed Smith's team on why they obtained Jordan's records, Assistant Special Counsel Duree offered two explanations that contradicted each other. He claimed the toll records were necessary to map Jordan's "networks." He also called the whole thing a "mistake."
Both cannot be true. Either the prosecutors deliberately sought the records of the House Judiciary chairman to trace his contacts, a decision that implicates the Speech or Debate Clause head-on, or they grabbed them accidentally, which would suggest a staggering lack of care with constitutionally protected material. Neither answer reflects well on the operation.
Fox News reported that the DOJ's own Public Integrity Section knew Jordan's phone number was being subpoenaed but did not disclose that fact to the agent who served the subpoena to Verizon. One retired Office of Inspector General agent, Brian Burnett, told the committee he had no idea whose records he was handling: "It was not until I had been retired and this was on the news... I do not know, as we sit here today, if that was his number or not."
Jordan had previously referred Smith to the DOJ over alleged false testimony to Congress, a referral that Smith's allies dismissed but that the committee's growing evidence file continues to support.
The committee report describes a separate episode that raises its own set of concerns. In June 2023, Smith's office received 54 spreadsheets of text messages from the National Archives and Records Administration. The messages had been collected from the White House custodian and included communications involving President Trump, former Chief of Staff Mark Meadows, former Director of National Intelligence John Ratcliffe, former Deputy Chief of Staff Dan Scavino, Ivanka Trump, former Vice President Mike Pence, and others.
Within one hour of receiving that trove, senior attorney Thomas Windom was already reviewing the communications. The committee report says the review appears to have been conducted without waiting for a filter team, the DOJ protocol specifically designed to screen out privileged material before investigators see it.
Filter teams exist for a reason. When prosecutors are investigating high-ranking officials, the risk of encountering attorney-client communications, executive privilege material, or other protected content is obvious. Bypassing that safeguard and diving straight into 54 spreadsheets of White House text messages within 60 minutes is not the conduct of a team that took constitutional boundaries seriously.
Sen. Chuck Grassley has separately exposed classified material lapses inside Smith's own office during the Trump prosecution, a pattern that reinforces the committee's portrait of an operation that treated rules as suggestions.
The committee report reserves particular criticism for the DOJ's Public Integrity Section, which is supposed to serve as an internal check on prosecutors who target public officials. The report says the section's discussions with Smith's team about the constitutionality of subpoenaing congressional phone records were "perfunctory."
Worse, the integrity office sometimes flagged potential constitutional issues, and then approved the subpoenas anyway. Internal emails obtained by the committee show that the office viewed gag orders as a way to limit "litigation risk," meaning the risk that a targeted lawmaker might go to court and win.
Senior Assistant Special Counsel Molly Gaston, in her own transcribed interview, quibbled with whether a congressional vote to certify a presidential election qualifies as an "obvious" official legislative act protected under the Constitution. That a senior federal prosecutor would treat the certification of a presidential election as something other than core legislative activity speaks to the mindset the committee report describes.
The committee report put it bluntly:
"Whether through arrogance or maliciousness, these partisan prosecutors were willing to violate the Constitution and break prosecutorial norms to achieve their narrow goals."
The fallout from Arctic Frost has already spilled into the Senate. Earlier this year, Sen. Marsha Blackburn led a hearing in which she grilled executives from Verizon, T-Mobile, and AT&T over their compliance with Smith's secret subpoenas. Verizon admitted it had no process in place to identify when a sitting member of Congress's records were being subpoenaed and complied without question. AT&T partially resisted, Breitbart reported.
Blackburn called Smith's conduct "the worst weaponization of government in American history" and framed the stakes in terms any American could understand:
"If this kind of invasion of privacy can happen to sitting members of Congress, and even the president of the United States, it can and probably will happen to all Americans unless we stop it right here."
FBI Director Kash Patel stated that the phone records of Republican lawmakers were "seized for political purposes", a direct accusation that the investigation was not a neutral law-enforcement action but a politically motivated campaign.
At Todd Blanche's attorney general confirmation hearing, Senate Republicans pressed the acting attorney general on Smith's methods. Sen. John Kennedy of Louisiana captured the mood with a single question: "Did Jack Smith read my emails?" the Washington Examiner reported. Smith's team had accessed text messages involving 44 members of Congress during the investigation, far more than the 17 whose toll records the Judiciary Committee report addresses.
The committee report also notes that the clause Smith's team allegedly violated does not protect only lawmakers. It protects the people they represent. As the report states: "The Speech or Debate Clause protects... American citizens too. It guarantees that the people's representatives in Congress may advocate effectively on their constituents' behalf without the threat of interference or intimidation by the Executive Branch."
Smith's track record of disputed testimony and procedural shortcuts is not a one-off. It fits a pattern the committee has been documenting for months.
As of the report's release, neither Jack Smith, Duree, Gaston, nor the DOJ has publicly responded to the committee's findings. The identities of most of the 17 targeted lawmakers remain undisclosed. The committee has not stated whether it plans criminal referrals, legislation, or additional hearings based on the report.
The legal predicate that triggered Arctic Frost, the specific basis on which the FBI opened the investigation, has not been disclosed in the materials released so far. Whether the committee's findings will lead to accountability beyond a published report is an open question.
But the record the committee has assembled is damning on its own terms. Smith's team obtained years of phone records from sitting lawmakers, imposed gag orders to prevent legal challenges, bypassed filter teams designed to protect privileged material, and dove into White House text messages within an hour of receiving them. The DOJ's own internal watchdog waved it all through after what the committee calls a rubber-stamp review. And when pressed under oath, Smith's prosecutors could not keep their own explanations straight.
Other figures connected to the broader accountability push have faced their own legal reckonings, John Bolton recently pleaded guilty to retaining classified material, but Smith himself has so far avoided any formal consequence for the conduct described in this report.
A constitutional guardrail exists precisely for moments like this, when the executive branch decides it wants to read the phone records of the legislators who oversee it. If that guardrail means nothing when prosecutors find it inconvenient, it means nothing at all.
