by Margot Cleveland at the Federalist
Smith never should have approved the subpoenas since they violated the congressional Republicans’ clearly established rights.
he Biden Administration okayed Special Counsel Jack Smith’s subpoenaing congressional phone records knowing the subpoenas were unconstitutional, emails released last week revealed. That same trove of documents also established the illegality of the nondisclosure orders issued by the courts to prevent the telecommunication providers from alerted the members of Congress of the unconstitutional seizure of their toll records.
Last week, as the nation turned its attention ahead to travel and turkey, Sen. Chuck Grassley, R-Iowa, released another two dozen documents related to the Arctic Frost investigation into President Donald Trump and Special Counsel Jack Smith’s subpoenaing of congressional phone records. A May 17, 2023 email from the Biden Administration’s Department of Justice to Smith’s team proves explosive, with the Public Integrity Section “concur[ring] in the subpoenas for toll records for the identified Members of Congress.”
This email may represent the first public evidence that the Biden Administration’s DOJ knew the special counsel’s office planned to subpoena congressional Republicans. But the scandal is even greater because in “concurring” in Smith’s use of subpoenas to target communications of members of Congress, the DOJ’s Public Integrity Section expressly acknowledged the unconstitutionality of the proposed course of action.
“As you are aware, there is some litigation risk regarding whether compelled disclosure of toll records of a Member’s legislative calls violates the Speech or Debate Clause in the D.C. Circuit,” Principal Deputy Chief of the DOJ’s Public Integrity Section John Keller wrote in a May 17, 2023 email to two top members of the special counsel’s team. Significantly, that email then cited the controlling precedent of United States v. Rayburn House Office Building, 497 F.3d 654, 662 (D.C. Cir. 2007), citing that appellate court decision’s holding that under the Speech or Debate Clause, “[t]he bar on compelled disclosure is absolute.” That email also cited In re Grand Jury Investigation, 587 F.2d 589, 594 (3d Cir. 1978) as establishing “[t]he caselaw is clear that a legislator asserting the invasion of the Speech or Debate Clause privilege by use of a grand jury subpoena to a third party may intervene and oppose such use.”
Notwithstanding the clarity of the D.C. Circuit’s holding in…
Continue Reading