Lawmakers Investigate DOJ as J6 Prosecutors Seize Phone Records

The Subpoena Controversy and the Oversight of Government Agencies

House and Senate Republicans have found themselves under scrutiny following the seizure of their phone records by former Special Counsel Jack Smith. This has raised concerns about the potential dual purpose of these subpoenas, which may not only be aimed at investigating the events of January 6 but also at monitoring the oversight efforts of Congress into the Justice Department and the FBI.

Former Representative Louie Gohmert, who left Congress in 2023, suggested that the subpoenas were an attempt to "spy on us to see what we were doing." He added that there was a possibility that the authorities were looking for any information they could use against them, indicating a possible intimidation tactic.

Gohmert's involvement with investigations into the FBI and Justice Department was significant, particularly through his role on the House Judiciary Committee. Earlier this fall, the FBI transferred documents to Congress showing that then-Special Counsel Smith had subpoenaed the phone records of eight GOP U.S. senators and one House member related to his probe into the Jan. 6 Capitol riots, known as Arctic Frost.

The document was located in a prohibited access file at the bureau in response to oversight requests from one of the targets, Republican Chuck Grassley, Chairman of the Senate Judiciary Committee. Grassley is probing Smith's tenure as special counsel.

Broader Implications of the Subpoenas

Smith's targeting of Republican officials was part of a larger effort by his investigative team to cast a wide net over the Trump-aligned movement following his appointment by the Biden Justice Department. In late October, Grassley made public nearly 200 subpoenas issued by Smith's team seeking records on more than 400 Republican personalities and groups.

Since the initial revelation, both the FBI and Congress have uncovered more subpoenas targeting then-House Speaker Kevin McCarthy, Gohmert, and House Judiciary Committee Chairman Jim Jordan. The subpoena for Jordan's phone records is unique in that it covered an expansive two-year period, long after the Jan. 6 Capitol riot took place.

The subpoena, issued on April 25, 2022, called for all phone communications from Jan. 1, 2020, to that present day, sweeping up data that fell far outside the incident and surrounding events that Smith was allegedly investigating.

Whistleblower Allegations and Concerns

Strikingly, Smith's team issued the subpoena for Jordan's phone records as his committee was receiving whistleblower accounts of politicization across the FBI under the Biden administration and Director Christopher Wray. These accounts ranged from alleged manipulation of domestic extremism statistics to purging employees who held conservative political views.

In November 2022, the Judiciary Committee released a report that shared the concerns from FBI whistleblowers that had approached the panel within the past year, beginning before Smith's appointment as special counsel by the Justice Department. Based on the committee's materials, it is clear that the panel was ramping up investigations of both the FBI and the Justice Department at the time when Smith's team issued the subpoena for Jordan's records.

On April 26, 2022, just one day after the subpoena, Jordan wrote Justice Department Inspector General Michael Horowitz asking him to look into a whistleblower complaint that the FBI had improperly suspended several employees' security clearances for constitutionally protected political activity on Jan. 6.

Constitutional Concerns and the Balance of Power

Jordan questioned whether the FBI was engaging in retaliatory actions. According to Jordan, the employees who attended a public event on Jan. 6 in Washington, D.C., have not been charged with any crimes, and "did not enter the United States Capitol." Yet, the FBI used these facts to question these employees' allegiance to the country, citing "Adjudicative Guideline A - Allegiance to the United States" in FBI regulations.

"The FBI's personnel actions against these employees therefore raise concerns that the Bureau may be taking significant steps toward firing these employees as retaliation for disfavored political speech," Jordan wrote in that letter to Horowitz.

The Judiciary Committee report detailed further whistleblower complaints in the same period, including allegations that the FBI inflated its domestic violent extremism data, the Justice Department used counterterrorism resources to investigate parents protesting school policies, and concerns about the "the FBI's lackluster investigation" into the Jan. 6 pipe bombs.

Legal and Ethical Considerations

Former Rep. Gohmert said that the seizure of Jordan's phone records at a time when he was overseeing substantial investigations into the FBI and Justice Department raises constitutional concerns. It also endangers Congress' oversight by undermining confidence that potential whistleblowers' information and identities will be kept secret.

"There's a constitutional privilege beyond the Fourth Amendment, a congressional privilege because we have whistleblowers that contact us," Gohmert told Just the News.

"The DOJ, they can't just come in and seize everything in our office. They have to go through an intermediary, like House counsel, that sees all the information, and then make sure that those things that are privileged, like whistleblowers who contact us from the DOJ and FBI, that their information doesn't fall into the hands of the FBI," Gohmert explained.

He added, "Can you imagine being an FBI agent that just summons up the courage to contact one of us, and then you find out, oh my gosh, they're grabbing all their cell phone data?"

The Court's Role and the Justice Department's Stance

However, despite the constitutional concerns, Smith's team asked the court to order phone companies to keep secret the subpoenas for Jordan's and the senators' phone records. On April 29, the court ordered "Verizon Wireless [...] not to notify any other person of the existence of subpoena number GJ2022042589990 issued by the United States on behalf of a federal Grand Jury," according to a sealed court document released by Jordan last month.

More than a year later, Justice Department employees assessed that constitutional concerns about subpoenas for sitting lawmakers' phone data were outweighed by the fact that the agency believed the seizures would remain secret, according to a document released by Grassley and Sen. Ron Johnson, whose phone records were also targeted.

The emails show "John Keller, principal deputy chief of the Justice Department's Public Integrity Section, informed one of Jack Smith's aides on May 17, 2023, that his office agreed with issuing subpoenas for lawmakers' phone records. He added, however, that forcing the disclosure of those materials might run afoul of the Constitution's Speech or Debate Clause."

Nevertheless, Keller believed the likelihood that the Justice Department would face litigation would be minimal, since the subpoenas were likely to remain secret since no member of Congress was expected to face any charges.

Criticism of the Justice Department's Actions

Blatant disregard for constitutional practice and balance of powers "Even putting aside the government's potentially meritorious argument that the calls over the relevant period - especially unsolicited incoming calls - would not constitute protected legislative acts, given my understanding of the low likelihood that any of the Members listed below would be charged, the litigation risk should be minimal here," Keller wrote.

The Justice Department's reasoning shows a blatant disregard for constitutional practice and balance of powers, Mike Howell, head of the Heritage Foundation's Oversight Project, told the John Solomon Reports podcast.

"Speaking in terms of, what's the litigation risk? What could they even do, even if we violate this constitutional practice here, what's the penalty? They'll never be able to do anything to us. It speaks to a blatant disrespect for an independent branch of government, one that they probably rightly recognize as atrophied over time, and being able to assert itself and hold the executive accountable," Howell said.

"It was not a problem whatsoever, because in the mindset of the FBI, [the members of Congress] defined Maga, and you know, Republicans as a domestic terrorist problem and threat, and treated them under the powers that we give the federal government to deal with things such as Islamic terrorism, and that's the world in which they were operating," Howell continued.