Lawyers for Jack Smith on Tuesday fiercely defended the former special counsel’s issuance of a grand jury subpoena for the phone records of some Republican lawmakers during his investigation into President Donald Trump’s efforts to overturn the 2020 election, shutting down allegations of “wiretapping.”
In a letter addressed to Sen. Chuck Grassley (R-Iowa), the chair of the Senate Judiciary Committee, Smith’s lawyers, Lanny Breuer and Peter Koski, said they felt “compelled to correct inaccurate assertions made by you and others” after it was made known that the FBI in 2023 analyzed the phone toll records of eight GOP senators and one Republican House member.
“A number of people have falsely stated that Mr. Smith ‘tapped’ Senators’ phones, ‘spied’ on their communications, or ‘surveilled’ their conversations. As you know, toll records merely contain telephonic routing information — collected after the calls have taken place — identifying incoming and outgoing call numbers, the time of the calls, and their duration. Toll records are historical in nature, and do not include the content of calls,” the letter reads.
“Wiretapping, by contrast, involves intercepting the telecommunications in real time, which the Special Counsel’s Office did not do,” it adds.
The lawmakers whose records were probed are: GOP Rep. Mike Kelly (Pa.) and Sens. Lindsey Graham (S.C.), Bill Hagerty (Tenn.), Josh Hawley (Mo.), Dan Sullivan (Alaska), Tommy Tuberville (Ala.), Ron Johnson (Wis.), Cynthia Lummis (Wyo.) and Marsha Blackburn (Tenn.).
Grassley previously said the investigative step amounted to “disturbing and outrageous political conduct by the Biden FBI,” calling on Attorney General Pam Bondi and FBI Director Kash Patel to discipline those involved in getting the records. Blackburn has also told Fox News Digital she would like to see Smith disbarred as a result of this.
AP Photo/J. Scott Applewhite
Smith’s lawyers said the subpoena was limited to just four days, Jan. 4-7, 2021, focused on the time period around the Jan. 6, 2021, insurrection at the U.S. Capitol.
“The subpoena’s limited temporal range is consistent with a focused effort to confirm or refute reports by multiple news outlets that during and after the January 6 riots at the Capitol, President Trump and his surrogates attempted to call Senators to urge them to delay certification of the 2020 election results,” they write.
Breuer and Koski cited the example of a voicemail Trump’s former personal attorney Rudy Giuliani mistakenly sent to a GOP senator intended for Sen. Tommy Tuberville (R-Ala.) to urge him to just “slow … down” the electoral count from his state, obtained by The Dispatch.
Smith’s lawyers described the subpoena for the toll records as a routine process, noting that former special counsel Robert Hur subpoenaed toll records in his probe of then-President Joe Biden and that the Trump Justice Department has also exercised similar action, including in his first term when authorities obtained the phone records of now-Sen. Adam Schiff (D-Calif.) and Rep. Eric Swalwell (D-Calif.) as part of an investigation into media leaks.
Smith’s team also shut down a claim by Patel that Smith hid the information and put the phone toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”
“It is not clear what cyber place in a vault in a lockbox Director Patel is describing, but Mr. Smith’s use of these records is inconsistent with someone who was trying to conceal them,” they said, adding that Smith’s report noted the use of toll records in his probe and that those records were turned over to Trump’s legal team during the discovery process.