Emails show Smith team made errors in drafting subpoena for GOP senator's phone records in J6 case

Internal Justice Department emails released Tuesday by Senate Republicans appear to show special counsel Jack Smith team’s coordination with the agency's public integrity section in an error-prone effort to subpoena the phone records of Republican senators and a GOP congressman in their January 6-related case against then-former President Donald Trump.

The emails from 2023 are notable for what appears to be their the hand-in-glove approval by the DOJ’s public integrity section of the request by Smith’s team, as well as errors in the Smith team request — repeatedly mistaking one Republican senator (Tim Scott) for another one (Rick Scott) with the same last name as they pursued approval for the subpoenas.

The records were released by Sens. Chuck Grassley, Iowa, and Sen. Ron Johnson, Wisconsin. 

The documents were handed over to Grassley and Johnson by the Justice Department through a letter sent to them by Assistant Attorney General Patrick D. Davis, who told the senators that “the Department remains committed to working with Congress to uncover the Biden Administration’s weaponization of law enforcement against its political opponents.”

“The closer you look, the more brazen Jack Smith’s actions become,” Grassley said on Tuesday. “These records show Smith and his merry band of partisans operating on a legally weak foundation by intruding on Members of Congress who were involved in core constitutional functions. Ultimately, the Biden DOJ threw the Constitution to the wind in seeking information about my colleagues.”

Grassley’s office also said the DOJ’s PIN “cleared the use of subpoena process against members but warned of constitutional equities.” 

Grassley’s office also argued that despite the Smith team contending that the subpoenas were narrowly-tailored “additional records have shown Smith issued subpoenas spanning months and years” for former Speaker of the House Kevin McCarthy, R-Calif., and Rep. Jim Jordan, R-Ohio, the current chairman of the House Judiciary Committee.

The Iowa Republican’s office also noted that “by the time Smith’s team was readying these member subpoenas, they had already acquired some members’ records through a previously issued subpoena for Rudy Giuliani’s tolls” and so “Smith’s congressional subpoenas were generally repetitive in nature and unnecessarily encroached upon members carrying out their constitutional duties.”

Smith was appointed by Attorney General Merrick Garland to helm the Biden Justice Department’s investigations of former President Donald Trump. Recently-declassified revelations related to the Arctic Frost inquiry chronicle the expansive lawfare efforts against Trump and MAGA world, as criminal inquiries – which would soon lead to criminal charges – spun into high gear in 2022 as Trump leaned toward running for president again.

The emails and records included a letter from the Smith-led “Election Investigation Team” emailed by Smith team member Molly Gaston to special counsel team members J.P. Cooney and Ray Hustler. Gaston asked Cooney and Hustler to “please see memo on our request to subpoena toll records.”

The letter contended that “an important issue in our investigation is who was involved in the Electors scheme” and that “we have also subpoenaed Verizon to identify some apparent gaps in our White House switchboard records.”

The letter added that “once we receive your approval, we will conduct a consultation with PIN and advise them of the above facts before issuing subpoenas.”

The Smith team proposal said that “we intend to subpoena toll records for January 4, 2021 to January 7, 2021” from Sens. Johnson, R-Wisc.; Lindsey Graham, R-S.C.; Bill Hagerty, R-Tenn.; Josh Hawley, R-Mo.; Dan Sullivan, R-Alaska; Tommy Tuberville, R-Ala.; Cynthia Lummis, R-Wyo.; Marsha Blackburn, R-Tenn.; and GOP Rep. Mike Kelly, R-Pa.

A recently unearthed FBI record from 2023 indicated that investigators at the bureau had “conducted preliminary toll analysis on limited toll records” tied to phone calls related to Sens. Johnson, Graham, Hagerty, Hawley, Sullivan, Tuberville, Lummis, Blackburn, and Kelly. Lawyers for Smith have defended their client's decision to obtain the phone records.

The newly-released May 2023 letter also showed the Smith team was considering a subpoena for Sen. Tim Scott, R-S.C., and for Sen. John Kennedy, R-La. Multiple versions of the letter repeatedly referenced “Tim Scott” but later replaced that with “Rick Scott.”

Hustler replied to the email from Gaston that “this is more than enough from my perspective.”

Cooney replied, “Agree. We will discuss with Jack [Smith] today. … Please go ahead with the PIN consult. When we get that sign off, please put that in the memo and then let’s be ready to send process right away.”

Gaston replied, “Will do.”

Gaston soon called the subpoena requests “narrowly-tailored” in an email to John Keller, then the principal deputy chief of DOJ’s public integrity section. “Tim Scott” was again listed instead of “Rick Scott.”

Keller replied, “PIN concurs in the subpoena for toll records of the identified Members of Congress.” The PIN leader added that “there is some litigation risk regarding whether compelled disclosure of toll records of a Member’s calls violates the Speech or Debate Clause” of the U.S. Constitution.”

Keller also said it was his understanding that there was a “low likelihood that any of the Members listed…would be charged” and so “the litigation should be minimal here.”

A follow-on letter from the “Election Investigation Team” to Cooney and Hustler said that “we consulted with PIN, and PIN concurs in the subpoenas proposed.” The “Tim Scott” instead of “Rick Scott” error persisted in this letter as well.

Hustler sent an email to Smith saying, “JP and I have reviewed and concur in the request. PIN concurs.” The letter he attached for Smith once more included the “Tim Scott” instead of “Rick Scott” error.

Smith told the top members of the team to “stop by” to discuss.

A “revised toll memo” sent by Hustler to Smith and Cooney purported to “fill the two holes that we discussed” — but persisted in mistaking “Tim Scott” for “Rick Scott.”

Gaston finally noted the mistake, saying, “One correction — we are going to get Sen. Rick Scott’s tolls, not Sen. Tim Scott’s.”

Keller then told Gaston that the mistake “does not” change his thinking on supporting the pursuit of subpoenas against the Republican members of Congress.

“I appreciate the DOJ producing documents that provide a glimpse into Jack Smith’s massive partisan dragnet,” Johnson said on Tuesday. “Collecting phone records from sitting members of Congress is only the tip of the corruption iceberg. I remain committed to exposing the full truth of Jack Smith’s and the Biden administration’s corrupt actions.”

Grassley, Johnson, and Jordan had also sent a letter to Judge James Boasberg last week, telling him that the two senators  “revealed that Special Counsel Smith’s office issued at least 43 subpoenas to Verizon and at least two to AT&T” and that “of the 43 subpoenas sent to Verizon, three were issued for phone records associated with at least 11 senators, including two numbers issued by the Senate Sergeant at Arms.”

“AT&T informed us that Special Counsel Smith’s team sent one subpoena requesting the phone records of Senator Cruz and an unnamed Member of Congress and another for phone records associated with former Speaker of the House of Representatives Kevin McCarthy which AT&T said they did not know was McCarthy’s number at that time,” the letter to Boasberg said.

The letter last week said that, for the subpoena for Cruz’s phone records, AT&T challenged “Special Counsel Smith’s office concerning the legal basis for seeking records of members of Congress” and Smith’s team “did not pursue the subpoena further, and no records were produced” but that, with respect to McCarthy, “since AT&T claims it did not know the number was associated with a member, the company produced the requested information.”

Grassley, Johnson, and Jordan said that “all 45 subpoenas were accompanied by an NDO [non-disclosure order] of which 19 of them, including the NDOs associated with Members of Congress, were signed by you.”

Smith issued nearly 200 subpoenas in his sweeping Arctic Frost-linked case against President Donald Trump related to the 2020 election and the events of January 6, 2021, seeking records on more than 400 Republican personalities and groups, according to records released by Grassley.

Recent evidence shows that Garland, then-FBI Director Chris Wray, and then-Deputy Attorney General Lisa Monaco signed off on the launch of the Arctic Frost inquiry into Trump related to the Capitol riot.

Unearthed emails also show that the Biden White House Counsel’s Office coordinated with an FBI agent to hand over phones that had belonged to Trump and former Vice President Mike Pence.

Arctic Frost also targeted dozens of GOP officials and organizations, according to documents released earlier this year.