Emails cast doubt on Jack Smith testimony he followed rules to protect attorney-client privilege

Then-Special Counsel Jack Smith’s investigators improperly saw potential attorney-client privileged materials on multiple occasions during its probes of President Donald Trump, calling into question the controversial prosecutor’s recent Senate testimony that his team had always followed so-called filter team protocols to protect such information.

Emails obtained under federal open records laws by The Oversight Project, a nonprofit investigative watchdog, show that Smith’s team internally acknowledged on at least six occasions between December 2022 and August 2023 when it had accidentally or improperly let suspected attorney-client privileged materials or other sensitive communications slide through filter team reviews. The documents were sent to frontline investigators, like FBI agents.

Such access potentially breached the constitutional protections for defendants and witnesses whose communications were gathered under subpoena or search warrant.

Newly disclosed: What Smith actually did contrasts with testimony

“The Smith Special Counsel Office requests the FBI search its Outlook server and/or eVault for the following potentially privileged document which may have been inadvertently sent to members of the investigative team,” an Aug. 3, 2023 email from the prosecutor’s records officer stated in one such example. “Please search the attached list of individuals’ UNET and FBINET Outlook accounts for a document titled SM_MAL-0021793.

“If found, please notify us of the locations and take steps to purge the document from those locations,” the email added. “The SCO is working to resolve the issue with this sensitive document quickly and we appreciate your help in this matter.”

The multiple instances of failing to protect attorney-client communications created awkward situations for frontline staff, who even considered deleting the email trail of evidence.

“I do not intend to read Brett's notes, which I have not previously seen. I would delete the email, but for FOIA purposes perhaps I shouldn't,” one official wrote in an Aug. 8, 2023 email that followed recalls of improperly forwarded evidence of attorney communications.

You can read the documents here.

The emails stand in stark contrast to Smith’s testimony just weeks ago to the Senate Judiciary Committee where he expressed confidence his team had followed the proper rules to keep attorney client privileged testimony out of the hands of agents and investigators who legally weren’t entitled to have it.

“Mr. Smith, it's your testimony to this committee that you observed the proper investigative protocols at all times, including the filter team?” Sen. Katie Britt, R-Ala., asked at one point during the hearing.

The ex-prosecutor answered: “Yes, we sought to do things consistent with the law and department policy.”

You can watch that testimony here,

The "proper rules" explained by Smith critics

When prosecutors seize material that is likely to include privileged communications, the DOJ manual requires a “filter team” made up of “agents and lawyers not involved in the underlying investigation" to pull out any protected communications before investigators see them.

Marshall Yates, a former chief of the FBI’s congressional affairs office who now works as a strategic counsel for The Oversight Project, told Just the News he believes the emails his group obtained show “a violation of somebody's constitutional rights” and conflict with Smith’s Senate testimony.

“Jack Smith's abuse of power knew no limits, and what he testified to the Senate Judiciary Committee was that they followed filter team protocols,” Yates told the John Solomon Reports podcast on Friday.  “He was very clear in that testimony. And what we found is a pattern … where prosecutors and investigators are seeing filtered information, non-filtered information that they're reviewing before it goes to a filter team. And that is a violation of the protocols that Jack Smith testified that they followed.

“And this is in writing, in their own words, where the prosecutors and the investigators are admitting and flagging over and over again, at least six times in the documents, six different violations that we found in just a few months that they should have never seen them, and they admit to seeing it. They admit to opening it. They have a number of times that they open it and review it, and that is just not allowed,” he added.

Smith has consistently and publicly denied wrongdoing and has broadly defended his work, telling senators he would pursue Trump all over again if given the chance.

Litigation likely in the near future on several fronts

Smith and his team are facing mounting questions, potential investigations and litigation.

House Judiciary Committee Chairman Jim Jordan in July referred Smith to DOJ for criminal prosecution after Smith “seemingly made willfully and intentionally false statements” during a deposition with the panel last December,

“The Committee sought to understand, in particular, whether Mr. Smith, or members of his team, ever received or reviewed the content of Members’ communications. During his deposition, Mr. Smith testified that he did not receive the content of Members’ text messages,” Jordan wrote Attorney General Todd Blanche.

“The DOJ produced documents to the Committee revealing that Mr. Smith’s team obtained text messages of 44 Members of Congress—implicating both Republicans and Democrats in both chambers of Congress—that may have included privileged content,” Jordan added. “This information calls into question the completeness and accuracy of statements that Mr. Smith made under oath to the Committee regarding his team’s access to the content of Members’ text messages.”

You can read the Jordan letter here.

Likewise, Sen. Marsha Blackburn, R-Tenn., has sued Smith personally, alleging his team’s collection of her phone records violated her civil liberties as a member of Congress, including her protections under the “Speech and Debate” clause of the U.S. Constitution.

Just the News reported earlier this month that Smith’s team also used a pen register and trace and trap device to monitor incoming and outgoing calls to Trump’s campaign chief Susie Wiles, specifically logging the calls of Trump’s defense lawyers.

The emails obtained by The Oversight Project chronicle multiple instances of attorney-client privileged materials slipping through filter team reviews.

“Hi, I just came across [redacted description] on Everlaw. It's a privileged doc. Can we have it removed?” one lawyer wrote on May 24, 2023.

Sometimes, DOJ lawyers internally argued the communications were more logistical than strategic but still advised deleting them from investigators' computers. Other times, clear concerns were raised that sensitive communications between a lawyer and client had been accessed.

“I wanted to give you a heads up that counsel … will be redoing the third production. The version we received contains some potentially privileged material,” a lawyer wrote in December 2022.

Editor's Note: John Solomon is working as an unpaid Special Government Employee as the chairman of the White House Government Transparency Task Force and has taken a leave of absence as Editor-in-Chief of Just the News while he serves in the  administration.