Agent in Jack Smith case says he was kept in dark that subpoenaed phone data belonged to Congress

A federal agent assigned to Special Counsel Jack Smith's investigation of Donald Trump said prosecutors kept him in the dark that phone data he was gathering under grand jury subpoenas belonged to members of Congress and that he would have had reservations about doing so if he had been told, according to explosive testimony released Tuesday night by the House Judiciary Committee.

Retired Justice Department Inspector General Special Agent Brian Burnett was quoted in the transcript as saying that during his decades working at the DOJ's watchdog, he never once was asked to collect congressional phone data and did not learn until after he retired in late 2024 that he had unwittingly done so as part of his work for Smith's team prosecuting Trump in connection with the Jan. 6 Capitol riot investigation code-named Arctic Frost.

Burnett was confronted with evidence that he had helped prosecutors gather long-distance toll data from the phone of Rep. Jim Jordan, now the House Judiciary Committee chairman and at the time of the Smith probe the top Republican on the panel. 

"I would've subpoenaed the number, but I did not know who the phone number belonged to, who the actual subscriber was," Burnett was quoted as saying in the transcript released by Jordan's committee. 

"It was not until I had been retired and this was on the news and there was conversation about Mr. Jordan's toll records being subpoenaed and then there was a subpoena that came up on  the internet," he explained. "So I was only assuming -- that had my name on it -- that that was his number. But I do not know, as we sit here today, if that was his number or not.

Congressional investigators prodded further. "So prosecutors never told you that you were going to be serving a subpoena for, at the time, the ranking member of the Judiciary Committee's phone records?"

"No. I don't have any recollection of that," he answered. 

"Would it have given you pause if you had known that it was going for the ranking member's" phone data, a congressional investigator asked.

"It would've been something I would've brought up to my supervisor, if there was a different process or something we needed to be doing if we were going to do that. But I was not aware."

You can read the interview transcript here.

Burnett's interview with the committee was one of six transcripts of former Smith associates that were released Tuesday night. The committee has expressed alarm that the FBI and Smith's team had gathered numerous phone records of members of Congress despite protections enshrined in the Constitution's Speech and Debate and Separation of Powers clauses protecting lawmakers' work from executive branch intrusions.

Burnett recounted how he was blocked by his inspector general supervisor from executing an earlier Smith team request to get another member of Congress' phone with a search warrant -- one belonging to Rep. Scott Perry -- because of legal concerns.

"I believe my supervisor -- as far as that team, [the] prosecution team, wanted us to go and seize Representative Perry's cell phone. And then it came down from the IG, you know, absolutely not. We were not going to do that," he answered.