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Internal Justice Department communications reveal at least six instances in which potentially protected materials reached investigators, raising questions about former special counsel Jack Smith’s September testimony regarding compliance with evidence-screening procedures.
By yourNEWS Media Newsroom
Newly disclosed Justice Department emails reveal that investigators working under former special counsel Jack Smith received potentially attorney-client privileged communications and other sensitive materials on at least six occasions during investigations involving President Donald Trump, raising questions about Smith’s sworn assurances to Congress that his office followed established procedures for protecting such evidence.
The communications, dating from December 2022 through August 2023, were obtained through Freedom of Information Act litigation by the nonprofit watchdog organization The Oversight Project. In an Oct. 22 release detailing the findings, the organization said internal correspondence documented instances in which materials that should have undergone independent privilege screening were improperly disclosed to prosecutors and FBI investigators.
The revelations follow Smith’s Sept. 29 testimony before the Senate Judiciary Committee, during which he maintained that his investigative teams complied with Justice Department policies and legal requirements governing potentially privileged communications.
During the hearing, Sen. Katie Britt, R-Ala., questioned Smith directly about whether his office consistently followed investigative safeguards.
“Mr. Smith, it’s your testimony to this committee that you observed the proper investigative protocols at all times, including the filter team?” Britt asked.
“Yes, we sought to do things consistent with the law and department policy,” Smith responded.
The newly released correspondence documents several incidents involving materials that reached members of the investigative team despite concerns about their protected status.
In a Jan. 11, 2023, email, senior assistant special counsel Thomas Windom acknowledged that certain search warrant materials should not have been provided to investigators.
“The filter team should not have recently released certain [redacted] search warrant materials to the substantive side,” Windom wrote.
Another communication, dated May 24, 2023, acknowledged that an attorney-client communication “was inadvertently disclosed to the Investigation Team.”
An Aug. 9, 2023, exchange documented an additional incident involving an unfiltered phone. A senior prosecutor acknowledged accessing materials that the special counsel’s office should not have received.
“SCO should not have it…I clicked on the link and opened two documents,” the prosecutor wrote.
The records also contain discussions about removing improperly distributed materials from government systems. In an Aug. 8 email, an official addressed whether a message containing potentially protected information should be deleted, while acknowledging obligations under federal public records laws.
“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,” the official wrote.
Federal investigative procedures establish protections intended to prevent prosecutors and investigators from reviewing confidential attorney-client communications obtained during searches, seizures or other evidence collection.
Under Justice Department guidelines, a separate filter team consisting of lawyers and agents uninvolved in the underlying investigation may review potentially privileged materials before determining what can be disclosed to the investigative team. The procedures are designed to protect confidential legal communications and prevent prosecutors from improperly accessing information protected by attorney-client privilege.
The emails indicate that members of Smith’s office recognized problems with those protections and discussed corrective measures after materials had already reached investigators.
The documents do not, by themselves, establish whether the disclosures were intentional, whether investigators used the information in prosecutorial decisions or whether Smith personally knew about each incident. They nevertheless raise questions about how consistently the office implemented its privilege-screening procedures.
The Oversight Project also questioned discussions involving deletion of electronic records, citing federal requirements governing the preservation of government communications. The Federal Records Act generally requires agencies to retain official records according to authorized schedules, although the correspondence alone does not establish that records were unlawfully destroyed.
The watchdog organization obtained the communications through litigation against the Justice Department, identified as Oversight Project v. DOJ, No. 25-cv-220, in the U.S. District Court for the District of Columbia.
The latest disclosure follows the organization’s earlier release of hundreds of pages of records concerning Smith’s office, including its management of electronic evidence, government devices and internal communications.
Smith, who oversaw federal investigations involving Trump’s handling of classified documents and efforts to challenge the 2020 presidential election results, has maintained that his prosecutorial decisions and investigative methods complied with applicable laws and Justice Department policies.
The Oversight Project contends that the newly disclosed incidents undermine those assurances and warrant further examination of how sensitive evidence was handled.
The distinction between inadvertent disclosure and deliberate misconduct remains significant. Although the correspondence documents potential failures in privilege-screening procedures, determining whether those incidents constituted legal violations would require additional information about the materials, the individuals who accessed them and any subsequent remedial actions.
The newly released records leave unresolved whether the documented disclosures affected the underlying investigations or whether additional incidents occurred beyond those identified in the correspondence.
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