Sen. Marsha Blackburn filed a federal lawsuit against former special counsel Jack Smith, alleging that secretly obtaining her telephone metadata violated constitutional protections and that Smith lacked lawful authority to exercise the powers of a special counsel.
By yourNEWS Media Newsroom
Sen. Marsha Blackburn, R-Tenn., sued former special counsel Jack Smith on Wednesday over his office’s acquisition of her telephone records during the federal investigation surrounding President Donald Trump, opening a new legal challenge one day after Smith faced senators over the same investigative tactics.
The lawsuit, Marsha Blackburn v. John L. Smith, seeks $1 in nominal damages, the return and destruction of Blackburn’s telephone records and a judicial declaration that Smith’s appointment as special counsel was unconstitutional, according to Fox News.
Blackburn’s attorneys contend that Smith’s office violated her constitutional and civil rights when investigators obtained telephone toll records through a grand jury subpoena while a court-approved nondisclosure order prevented Verizon from telling her the information had been turned over.
The records did not contain audio from Blackburn’s calls or the contents of her conversations. They included metadata showing information such as whom she communicated with, when calls occurred and their duration.
Blackburn argues that secretly collecting those records prevented her from asserting protections available to members of Congress under the Constitution’s Speech or Debate Clause.
That clause provides members of Congress protections against being questioned elsewhere over legitimate legislative acts and is intended in part to preserve the independence of the legislative branch from executive and judicial interference.
The lawsuit alleges Smith’s office issued the Verizon subpoena in May 2023 and obtained the accompanying nondisclosure order without informing the judge that some of the requested records belonged to a sitting U.S. senator.
Blackburn is suing Smith in his personal capacity.
Her claims are allegations that have not been adjudicated, and no court has determined that Smith personally violated Blackburn’s constitutional rights through the subpoena.
The litigation follows Smith’s appearance Tuesday before the Senate Judiciary Committee, where lawmakers spent hours questioning him about subpoenas, telephone metadata and other information gathered during the investigation that became known as Arctic Frost.
Smith acknowledged that his office approved subpoenas seeking toll records associated with members of Congress.
He defended the investigative steps as legally authorized and told senators the records were relevant to determining communications surrounding efforts to challenge the 2020 presidential election results.
Smith also emphasized that toll records are metadata rather than the contents of telephone conversations or text messages.
During questioning by Senate Judiciary Committee Ranking Member Dick Durbin, D-Ill., Smith said his office consulted the Justice Department’s Public Integrity Section before seeking the congressional toll records to determine whether the subpoenas were appropriate.
Republicans argued that the use of nondisclosure orders was particularly significant because lawmakers could not challenge the subpoenas before their records were produced.
Blackburn’s lawsuit now seeks to put that constitutional dispute before a federal court.
Her attorneys argue that had she received notice, she could have invoked the Speech or Debate Clause and challenged the government’s acquisition of records involving legislative communications.
The lawsuit also raises a broader question that has followed Smith since one of his prosecutions of Trump was dismissed in 2024: whether then-Attorney General Merrick Garland possessed the statutory and constitutional authority to appoint Smith as special counsel without a presidential nomination and Senate confirmation.
Garland appointed Smith in November 2022 to oversee two existing Justice Department investigations involving Trump.
One concerned alleged efforts to interfere with the transfer of presidential power following the 2020 election and the Jan. 6, 2021, certification of Electoral College votes.
The second concerned classified documents and other presidential records retained at Trump’s Mar-a-Lago property and alleged obstruction of government efforts to retrieve them.
Smith ultimately obtained indictments against Trump in both investigations.
Trump pleaded not guilty and denied wrongdoing, repeatedly arguing that the prosecutions were politically motivated.
Neither case reached trial.
U.S. District Judge Aileen Cannon dismissed the classified-documents prosecution in July 2024 after ruling that Garland lacked statutory authority to appoint Smith and that the appointment violated the Constitution’s Appointments Clause.
The Justice Department disputed Cannon’s interpretation and appealed the ruling.
The department’s Office of Legal Counsel also maintained that Garland had authority under several federal statutes to appoint Smith, including provisions granting the attorney general powers to commission attorneys to conduct federal criminal proceedings.
The broader constitutional issue therefore has remained contested rather than receiving a definitive resolution binding all federal courts.
Blackburn’s lawsuit asks a court to address that issue again in the context of an alleged personal constitutional injury stemming from Smith’s investigation.
Federal law generally distinguishes between principal officers, who require presidential appointment and Senate confirmation, and “inferior officers,” whose appointment Congress may permit through other mechanisms.
Whether the authority exercised by a special counsel such as Smith fits lawfully within those provisions has been the subject of conflicting legal arguments.
Blackburn’s attorneys contend Smith did not lawfully hold the federal office whose power he used to obtain her records.
The suit also challenges what they say was an intrusion into congressional independence.
Smith, during Tuesday’s testimony, rejected allegations that his investigations were driven by political considerations.
He maintained that prosecutors were pursuing evidence relevant to potential criminal offenses and said the fact that records involved Republican elected officials did not mean those officials were being investigated because of their party affiliation.
The toll-record dispute involves several Republican senators.
Smith’s investigation obtained telephone metadata involving lawmakers while investigators examined communications connected to Trump and his allies following the 2020 presidential election.
Congressional Republicans subsequently obtained records detailing the subpoenas and nondisclosure orders and have conducted extensive oversight into how the information was gathered.
The controversy widened further when Senate investigators disclosed that Smith’s team had obtained other congressional communications through separate sources, including messages stored in presidential records held by the National Archives.
Those records are distinct from the Verizon toll data at the center of Blackburn’s lawsuit.
Tuesday’s hearing repeatedly returned to that distinction as senators questioned exactly what information investigators possessed, how it was obtained and what protections were applied to congressional communications.
Blackburn’s lawsuit comes on the same day that fellow Tennessee Republican Sen. Bill Hagerty announced a separate professional conduct complaint against Smith with Tennessee’s attorney disciplinary authority.
Together, the actions move Republican challenges to Smith’s investigative conduct beyond congressional oversight and into both federal court and the attorney disciplinary process.
Blackburn’s case has been brought on her behalf by the New Civil Liberties Alliance.
Her attorneys contend the dispute concerns both Smith’s original appointment and the exercise of investigative powers against a sitting senator.
Smith’s office was created after Trump announced another campaign for president in November 2022. Garland said at the time that appointing an outside special counsel was in the public interest because Trump had become a candidate while President Joe Biden had also indicated plans to seek reelection.
Smith brought the federal election case against Trump in Washington in August 2023 and the classified-documents case in Florida earlier that year.
Following Trump’s victory in the 2024 election, prosecutors moved to dismiss the federal cases in accordance with longstanding Justice Department policy against prosecuting a sitting president.
Smith subsequently resigned from the Justice Department after completing his work.
The investigations have nevertheless remained the subject of congressional scrutiny, particularly over records obtained from lawmakers, political organizations, businesses and other third parties.
Blackburn’s lawsuit now asks a federal judge to decide whether Smith’s appointment was lawful and whether the secret acquisition of her phone metadata violated protections she possesses as a member of Congress.
A ruling in Blackburn’s favor could extend beyond the requested $1 in damages because she is also seeking a declaration addressing the legality of Smith’s appointment and an order requiring her records to be returned and destroyed.
Smith has not been found liable for any of the conduct alleged in the lawsuit.
The case now puts questions raised repeatedly during Tuesday’s Senate hearing into an adversarial court proceeding, where Blackburn will have to establish both that Smith lacked lawful authority and that the acquisition of her records violated legally enforceable constitutional rights.
Original article
Comments