Congressional Republicans have spent years claiming the federal authorities has been “weaponized” in opposition to their aspect. They’ve usually finished this by making hyperbolic claims that went well beyond the available evidence.
It’s occurring but once more.
We realized Monday that particular counsel Jack Smith had obtained the phone records of 9 congressional Republicans as a part of his January 6, 2021, investigation.
Republicans shortly raised this as proof constructive of a Watergate-esque conspiracy in opposition to them.
A couple of key factors:
The information was greeted virtually immediately with Republican claims and strategies of an unlimited authorities conspiracy.
Sen. Chuck Grassley of Iowa claimed it amounted to the Justice Department beneath President Joe Biden having “spied” on Republicans.
“BIDEN FBI WEAPONIZATION = WORSE THAN WATERGATE,” Grassley posted on X.
FBI Director Kash Patel declared it “proof” that the records had been “seized for political purposes.”
President Donald Trump mentioned Smith “got caught with his hand in the cookie jar.”
And Republicans made it a focus of a hearing Tuesday featuring Attorney General Pam Bondi. Sen. Josh Hawley of Missouri went thus far at the listening to as to say the FBI had “tapped my phone.”
“Tapped my phone. Tapped Lindsey Graham’s phone. Tapped Marsha Blackburn’s phone. Tapped five other phones of United States senators,” Hawley mentioned at the listening to. “Gee, it sure looks like targeting political opponents to me.”
The very first thing to notice is that the proof doesn’t present any telephones had been “tapped.” It exhibits the FBI obtained courtroom orders for phone records – i.e. name logs. This is just not the identical as the authorities listening in to the content material of the phone conversations.
(When a journalist pointed that out Tuesday, Hawley responded by suggesting that the name log info was basically equivalent to phone-tapping.)
Nor does the proof match what’s historically understood to represent “spying.” (Trump has usually exaggerated the evidence to say the Obama DOJ “spied” on his 2016 marketing campaign.)
It’s additionally not shocking. We already knew that the phone records of some lawmakers had been seized in Smith’s probe, as a result of the Justice Department needed to overcome legal hurdles posed by the Constitution’s Speech or Debate Clause.
And it’s obscure how Smith ever may have carried out such a probe with out obtaining some phone records of lawmakers. That’s as a result of Trump’s strain on lawmakers was a key a part of his efforts to overturn the 2020 election.
Two of the lawmakers on the listing, for instance, had some recognized proximity to the so-called pretend electors effort: Sen. Ron Johnson of Wisconsin and Rep. Mike Kelly of Pennsylvania.
We additionally know from Smith’s report and proof uncovered by the House January 6 committee that Trump had been reaching out to lawmakers and instructing workers to do the identical.
It would appear very troublesome to piece collectively a case with out understanding who was speaking to whom, and when. The request from the particular counsel for records lined the interval from January 4 to January 8, 2021 – a key time when lawmakers had been being pressed over Trump’s effort to carry on to energy. And importantly, there’s no indication from what has been launched that the lawmakers themselves had been the goal of any investigation; there’s solely proof that investigators needed to know their interactions with others.
As typical with these claims, it principally comes down as to whether you consider the investigation itself was well-founded to start with.
Smith wound up utilizing his proof to indict Trump in a case that might have gotten a full airing in courtroom, if it hadn’t been preempted by Trump successful the 2024 election. Many GOP senators additionally criticized Trump’s efforts to overturn the election, and 7 voted to convict him at his impeachment trial – whether or not or not they thought it was prison.
There can be no proof, as Patel claimed, that this proves the phone records had been “seized for political purposes.” The records had been seized as a part of an investigation that really led to fees.
If you had been tuning in to this situation early this week, you could be beneath the impression that this was an unprecedented breach of the strains between the govt and legislative branches.
In truth, it’s not. The Trump Justice Department really did it earlier than.
During Trump’s first time period, it obtained the phone records of Democratic lawmakers as a part of its leak investigations. The administration again then hunted for sources behind media experiences about the Russia investigation, with Trump usually calling for the leaks to be rooted out.
NCS has reported the lawmakers had been then-House Intelligence Committee members Eric Swalwell and Adam Schiff, each of California. (Schiff is now a senator.)
The state of affairs was first reported in 2021. And late final 12 months, Justice Department inspector basic Michael Horowitz weighed in with a report. He discovered the DOJ secretly obtained the phone records of two members of Congress (apparently Schiff and Swalwell), in addition to 43 staffers.
(One of these staffers, sources have informed NCS, was apparently Patel, who was then a House GOP aide.)
Swalwell on Thursday responded to Republicans’ decrying Smith’s transfer by asking a lot of them why they didn’t object to his own phone records being subpoenaed by Trump’s DOJ.
Horowitz’s inspector basic report was nonetheless out there on the DOJ’s web site as recently as June 2025, based on the Wayback Machine, however it is no longer posted.
The Trump DOJ’s pursuit of those lawmakers’ phone records was apparently objectionable sufficient that Trump’s former legal professional basic, Bill Barr, again in 2021 distanced himself from it.
It is dicey, and so much relies upon on the circumstances
And that will get at the key situation right here. It is certainly no small matter for the Justice Department to subpoena the communications records of lawmakers or their aides, implicating important constitutional questions.
As Horowitz wrote in his report final 12 months, it “risks chilling Congress’s ability to conduct oversight of the executive branch.” He additionally mentioned it may create, “at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch.”
But what occurs when there may be really some doubtlessly criminality? Do you doubtlessly hamstring the investigation by exempting key proof if it’d come from a lawmaker’s phone records? What if that lawmaker may need participated in a criminal offense? That does occur. Democratic Sen. Bob Menendez, for instance, had his house searched by the Biden administration as a part of an investigation that started in Trump’s first time period. He was in the end convicted of bribery and corruption fees and sentenced to 11 years in prison earlier this year.
It’s a balancing act.
The leak investigations notably didn’t result in prison fees, in contrast to Smith’s January 6 investigation.
These are troublesome points, they usually’re extremely dependent on the particulars.
We know little or no of these particulars in terms of why Smith sought the records of those lawmakers, particularly. Without that, it’s unattainable to succeed in conclusions about whether or not it may need been warranted. And we actually don’t have proof that it was finished for political functions.
But ready for that info isn’t politically expedient. So but once more, we’re seeing lawmakers leap to conclusions.