The Justice Department has confirmed that former Special Counsel Jack Smith’s investigators secretly obtained and reviewed private text messages belonging to 44 members of Congress while pursuing criminal charges against President Donald Trump, according to records the department turned over to the Senate Judiciary Committee this week.
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The revelation, made public Tuesday by the committee, shows Smith’s team sidestepped standard filtering safeguards meant to shield lawmakers’ communications from prosecutors, a move critics say tramples on the Constitution’s separation of powers.
Of the 44 lawmakers whose messages were reviewed, 40 are Republicans and four are Democrats, according to the Judiciary Committee.
The Constitution’s Speech or Debate Clause shields members of Congress from being “questioned in any other Place” for actions tied to their legislative work, protecting them from executive branch overreach. The Judiciary Committee said in its release that lawmakers’ official communications “are protected from criminal prosecution” under that clause.
Committee Chairman Chuck Grassley, R-Iowa, and Sen. Ron Johnson, R-Wis., chairman of the Permanent Subcommittee on Investigations, obtained the records after whistleblowers came forward with protected disclosures, prompting the senators to formally request documents from the department.
Grassley, whose own messages were caught up in the review, said Biden administration investigators “apparently ignored their own routine investigative protocols” to sweep up communications from him and colleagues on both sides of the aisle.
The records show the Biden Justice Department had set up a “Filter Team” specifically to screen materials gathered during Smith’s overlapping investigations—the Jan. 6 inquiry, code-named “Project Coconut”; the Mar-a-Lago documents case, “Project Cranberry”; and the broader “Arctic Frost” probe into 2020 election challenges. Investigators are alleged to have bypassed that safeguard, reviewing the texts before the filter process was complete.
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The messages were obtained through a subpoena to the National Archives covering phone records from October 2020 to Jan. 20, 2021, turned over in August 2023. Phones tied to numerous Trump-era officials were swept in, including those of Trump himself, Stephen Miller, Rudy Giuliani, Kellyanne Conway, Peter Navarro, Ivanka Trump, Mark Meadows and former Vice President Mike Pence.
Sen. Rand Paul, R-Ky., called the episode “a blatant abuse of power,” and noted Smith testified under oath in a December deposition that his team had not reviewed lawmakers’ texts—testimony Paul suggested the new records contradict.
Sen. Josh Hawley, R-Mo., said he learned the Biden administration “ILLEGALLY obtained” his texts and said “Everyone involved needs to be PROSECUTED.”
Rep. Eli Crane, R-Ariz., said several colleagues, including Rep. Andy Biggs, R-Ariz., were also targeted, warning that unchecked surveillance of lawmakers sets a precedent for ordinary Americans. “These individuals who engaged in that type of behavior absolutely need to be held accountable,” he said.
Grassley said he intends to call Smith before the Judiciary Committee, urging Democrats “to put partisanship aside and recognize the severity of these actions.”
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Smith never secured a conviction against Trump before leaving office.
