Investigators working for special counsel Jack Smith directly accessed text messages belonging to 44 current and former members of Congress, newly released records show.
Mr. Smith’s investigators bypassed a “filter team” process meant to screen out privileged material before investigators could see it, said Senate Judiciary Committee Chairman Charles E. Grassley, Iowa Republican, and Senate Homeland Security and Governmental Affairs permanent subcommittee on investigations Chairman Ron Johnson, Wisconsin Republican.
The two senators made the records public Tuesday.
The Justice Department provided the records to senators who are conducting a review of the FBI’s Arctic Frost investigation into challenges to the 2020 presidential election.
According to a Justice Department cover letter summarizing the material, the department had set up a filter team to review records gathered in Mr. Smith’s investigation of the Jan. 6, 2021, Capitol riot — internally designated Project Coconut — and in his Mar-a-Lago documents case, internally designated Project Cranberry.
The team’s job was to keep the special counsel’s investigative staff and the FBI from seeing privileged material swept up in those probes.
However, Mr. Smith’s investigative team “apparently bypassed the Filter Team and directly accessed” text messages involving members of Congress. If accurate, the process would have skipped review for executive privilege and other protections, including the attorney-client privilege and the Constitution’s speech or debate clause, which shields lawmakers’ communications about their legislative duties from criminal scrutiny.
Mr. Grassley called the episode further evidence that Mr. Smith’s investigation operated without adequate constraints. He said Biden-era Justice Department and FBI investigators “ignored their own routine investigative protocols” to obtain messages from lawmakers who were outside the scope of the inquiry.
He said he planned to bring Mr. Smith before the Judiciary Committee to answer questions about the matter and urged Democratic colleagues whose communications were also affected to treat the issue as a shared, bipartisan concern rather than a partisan one.
“Jack Smith’s criminal investigation of President Trump was a runaway train that had no brakes,” Mr. Grassley said. “I hope my Democrat colleagues, several of whom had their own texts swept up, finally put partisanship aside and recognize the severity of these actions.”
Mr. Johnson described the episode as part of a broader pattern of Justice Department overreach under President Biden. He said Mr. Smith’s team “acted with impunity.”
“This is yet another grotesque example of the Biden administration’s weaponization of the Justice Department,” Mr. Johnson said.
The records indicate the affected communications involved both parties. Mr. Grassley and Mr. Johnson said their own texts were among those swept up, along with those of 18 other sitting or former senators and 24 House members.
In June 2023, Mr. Smith’s office subpoenaed the National Archives and Records Administration for text messages sent from October 2020 to Jan. 20, 2021, from phones tied to Mr. Trump’s White House personnel from his first term.
That included Mr. Trump; former Vice President Mike Pence; former White House Chief of Staff Mark Meadows; former White House Deputy Chief of Staff for Communications Dan Scavino; former White House senior adviser Ivanka Trump; former White House senior advisers Stephen Miller and Peter Navarro; former Director of National Intelligence John Ratcliffe; former Pentagon chief of staff Kash Patel; former Trump personal attorney Rudolph Giuliani; and former White House counselor Kellyanne Conway.
On Aug. 21, 2023, the Archives turned over the texts to the special counsel’s office. The records showed that within about 30 minutes, senior special counsel office attorney Thomas Windom had downloaded the material, and other team members began reviewing it within the hour, apparently before the filter team completed a screening.
Thirty-three Republicans and three Democrats were among the lawmakers affected.
Republican senators named included John Cornyn of Texas, Josh Hawley of Missouri, Mike Lee of Utah, Cindy Hyde-Smith of Mississippi, Dan Sullivan of Alaska, Rand Paul of Kentucky, Rick Scott of Florida, Susan Collins of Maine, Tim Scott of South Carolina and Tom Cotton of Arkansas.
Republican House members named included Steve Scalise of Louisiana, Jim Jordan of Ohio, Andy Biggs of Arizona, Bryan Steil of Wisconsin, Dan Newhouse of Washington, Dusty Johnson of South Dakota, Elise Stefanik of New York, Mario Diaz-Balart of Florida, Morgan Griffith of Virginia, Russ Fulcher of Idaho, Scott Perry of Pennsylvania and Thomas Massie of Kentucky.
Democrats named are Sen. Cory Booker of New Jersey, Rep. Josh Gottheimer of New Jersey, Rep. Adam Smith of Washington and former Rep. Karen Bass of California.
The disclosure is the latest in a series of document releases tied to the senators’ Arctic Frost oversight investigation.
The investigation previously focused on subpoenas for lawmakers’ phone records.
Mr. Smith’s office has defended its methods, telling Congress that gathering records, including metadata, was a standard part of investigating a complex conspiracy.
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