Grassley’s release of these materials is part of a broader effort by the Iowa Republican and other Trump allies to portray Smith as a reckless or overaggressive prosecutor in his pursuit of criminal cases against Trump during the Biden administration, which many GOP lawmakers believe were politically motivated.
Let us explain why Smith broke NO LAWS.
H/T Gene Trevino (@GenoVeno73) on X
During Special Counsel Jack Smith’s investigation – known as “Artic Frost” – a grand jury subpoena was issued for companies like AT&T, Verizon, etc., requesting phone “toll” or “metadata” records (dates/times of calls, who called whom, durations, possibly location-based routing info) of about 8 Republican Senators — but that subpoena did NOT include the actual content of those calls or texts.
Under United States v. Sells Engineering, Inc., (1983), the U.S. Supreme Court ruled:
“Although the present Rule 6(e) is a considered judgment by Congress about the competing needs for grand jury secrecy and for effective use of grand jury materials, it accepts the same principle: that the only use to be made of grand jury materials by ‘ATTORNEYS FOR THE GOVERNMENT’ is in connection with the criminal prosecution to which the materials pertain.”
In other words, the prosecutor (ie, Jack Smith) acts as the agent of the grand jury in criminal investigations. Jack Smith did not issue the subpoena under his personal authority, but as the legal representative of the grand jury, whose mandate is to investigate potential federal crimes in order to rule on an indictment.
[18 U.S.C. § 3332 states:
(a)It shall be the duty of each such grand jury impaneled within any judicial district to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district.]
That is to say, the grand jury subpoena for these assholes’ phone records (and those of other Republicans) was formally signed by the Clerk of the Court and/or issued with a prosecutor’s signature (Jack Smith), but its legal authority came from the grand jury under the direction of Jack Smith’s team.
Under Federal Rule of Criminal Procedure 17(a):
“The clerk must issue a blank subpoena—signed and sealed—to the party requesting it, and that party must fill in the blanks before the subpoena is served.”
Now, the issue of Article I, Section 6, Clause 1 – known as the Speech or Debate Clause – comes into question:
“For any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.”
That Constitutional Article has been interpreted by the Supreme Court to mean that lawmakers are immune from being compelled to testify or provide evidence about their LEGISLATIVE ACTS. Those are key words.
I say legislative acts are key words because under United States v. Brewster (1972) — the Court distinguished between legislative acts (which are Constitutionally protected) and political or criminal conduct (which is not protected).
The Court made it clear, that a member of Congress can be prosecuted for actions or crimes, that are “not part of the legislative process.”
Hence, at the direction of the grand jury, Special Counsel Jack Smith was able to subpoena Republican members records as part of a criminal investigation.
Jack Smith did NOT break, nor violate, any law. He did NOT act outside his scope as Special Counsel and bounds. He followed the law.