Former special counsel Jack Smith’s legal team acknowledged that media reports were a key factor behind his 2023 decision to subpoena the phone records of nine Republican lawmakers, a revelation that could add new fuel to GOP accusations of political targeting.
Smith’s attorneys, Lanny Breuer and Peter Koski, defended the subpoenas as “entirely proper, lawful, and consistent with established Department of Justice policy,” according to a letter they sent Tuesday to Senate Judiciary Committee Chairman Chuck Grassley (R-IA). The letter follows a referral to the Justice Department sent by Sen. Marsha Blackburn (R-TN) last week that urged the Office of Professional Responsibility to investigate Smith and consider his disbarment in two states.
Smith’s lawyers said the subpoenas, which sought toll data that captured the date, time, and duration of calls but not their content, were issued after “reports by multiple news outlets” suggested that President Donald Trump and his then-attorney Rudy Giuliani attempted to call senators during the Jan. 6 Capitol riot to urge them to delay certification of the 2020 election results. They cited contemporaneous stories from CNN, The Dispatch, and Business Insider describing Trump’s misdialed calls and Giuliani’s voicemails to Republican senators, including Sens. Tommy Tuberville (R-AL) and Mike Lee (R-UT).
“The toll data collection was narrowly tailored and limited to the four days from January 4, 2021 to January 7, 2021,” Breuer and Koski wrote, describing it as a focused effort to verify the media accounts. The attorneys also rejected claims from FBI Director Kash Patel that Smith concealed the records, saying his office “faithfully adhered” to DOJ procedures and obtained authorization from the department’s Public Integrity Section before proceeding.
The letter marks Smith’s first direct rebuttal to allegations that the Biden-era FBI’s Arctic Frost investigation, later merged into his Trump election-interference prosecution, illegally targeted Republican members of Congress. Grassley previously described the subpoenas as “arguably worse than Watergate,” while Blackburn and other GOP lawmakers called them “a weaponized witch hunt.”
Smith’s counsel countered that collecting telephone metadata is a routine investigative step used in both Democratic and Republican administrations, noting that former special counsel Robert Hur employed similar methods in his 2024 inquiry into then-President Joe Biden’s classified documents.
“Politics never influenced his decision making,” the letter stated. “Mr. Smith’s investigative efforts, including the issuance of a grand jury subpoena for telephone toll records, were handled in an entirely lawful and appropriate manner.”
HOUSE JUDICIARY COMMITTEE DEMANDS JACK SMITH TESTIFY OVER TRUMP INVESTIGATIONS
Meanwhile, House Judiciary Committee Republicans continue to demand that Smith testify about what they call politically motivated prosecutions. The committee has already interviewed other prosecutors involved in investigations of Trump during his four years out of office, including Jay Bratt, Thomas Windom, and J.P. Cooney.
Chairman Jim Jordan (R-OH) said in a letter last week that those witnesses have been uncooperative with the committee’s inquiry, and that Smith himself has so far failed to respond to earlier requests to turn over documents.
