Two weeks ago, former Special Counsel Jack Smith testified for over eight hours before the House Judiciary Committee. Buried in the transcript is a story about investigative tools that should concern anyone who cares about checks and balances.
What HappenedWhat Happened
Investigating January 6, Smith’s office subpoenaed “toll records” for Members of Congress, metadata showing who called who, when, and for how long. No content, just routing info.
The process: DOJ sends the subpoena to your carrier without a judge. Judges only approve the “nondisclosure order” (NDO), the gag preventing carriers from telling you. Smith admits the tradeoff: with an NDO, targets “won’t be able to make those arguments” to quash it.
The ProblemThe Problem
Committee: Did the judge know it was a Member of Congress?
Smith: “I don’t think we identified that.”
Committee: Members couldn’t litigate because they never knew?
Smith: “That is correct.”
The Speech or Debate Clause exists to prevent executive surveillance of legislative work, even during legitimate investigations.
Smith’s CounterSmith’s Counter
Trump picked the targets: “Donald Trump directed his co-conspirators to call these people. If Trump had chosen Democratic Senators, we would have gotten their toll records too. Responsibility lies with Trump.”
Obstruction risk: The case involved “grave risk of obstruction” given Trump’s conduct. The NDO prevented anyone from tipping off targets.
Followed protocol: His office consulted Public Integrity (DOJ’s Speech or Debate experts), who “concurred in us getting these subpoenas.”
When asked if the consultation was thorough, Smith admits it was “not that fulsome.” Chairman Jordan reads from the actual Public Integrity email: it assessed “low likelihood Members would be charged” and “minimal litigation risk”, partly because members wouldn’t know to sue. Smith says he approved the subpoenas but pushes back on calling it “cursory.”
The Structural QuestionThe Structural Question
Even accepting Smith’s justification—legitimate investigation, obstruction risk, expert consultation—the process created executive surveillance of the legislative branch with zero opportunity to challenge it.
Smith agrees with a famous 1940 warning from Attorney General (later Supreme Court Justice) Robert Jackson about prosecutors’ greatest danger: “pick the man, then look for the crime.” Smith says he followed those principles. But the mechanism existed regardless of his intent.
Why This MattersWhy This Matters
A December 2024 DOJ Inspector General report noted DOJ policy didn’t require NDO applications to indicate when accounts belonged to Members. DOJ has since updated policy to require disclosure in court filings when an NDO would delay Member notification.
That policy change proves DOJ recognized the structural problem.
The question isn’t Smith’s motives or whether he broke law. It’s whether the next administration, any party, should have this playbook.
What’s the right safeguard when DOJ wants metadata plus a gag on legislators? Mandatory judge disclosure? Time limits? Delayed notice? Higher threshold? Special master?
The system was: subpoena without judge oversight, gag from a judge who doesn’t know the target, target never objects.
Smith’s counter: we had good reasons and followed existing rules. Fair. But “trust us” plus “policy didn’t require disclosure” isn’t a structural safeguard.
That’s constitutional design. If the safeguard is “only when we trust who’s using it,” isn't that hoping for good kings?
Should this tool exist in this form, regardless of who’s holding it?