Secret phone-record seizure sparks personal lawsuit from GOP senator
FIRST ON FOX: A top Republican senator whose phone toll records were secretly subpoenaed during Jack Smith's investigation of President Donald Trump sued the former special counsel in his personal capacity Wednesday, arguing he was never lawfully empowered to wield the authority behind the Arctic Frost investigation.
The lawsuit, Senator Marsha Blackburn v. John L. Smith, argues the prosecutor lacked lawful authority to serve as special counsel and violated the lawmaker's rights by obtaining the records. Blackburn is asking a federal court to declare Smith's appointment unconstitutional, order the records destroyed and award $1 in nominal damages.
The case therefore seeks to test not only Smith’s tactics, but the legitimacy of the authority he claims to have exercised as special counsel appointed by then-Attorney General Merrick Garland during the Biden administration.
"This lawsuit is solely about holding Mr. Smith accountable and ensuring that our nation’s justice system can never again be weaponized against the American people," Blackburn, R-Tenn., told Fox News Digital.
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"Through his Arctic Frost witch-hunt that targeted conservatives across America and even the president of the United States, Jack Smith perpetrated one of the worst abuses of government power in our nation’s history," she said.
Blackburn’s suit argues that Smith lacked lawful authority to hold the office he purported to exercise, while separately seeking to impose personal liability on him for the way that purported authority was used against her.
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The case opens a new legal front against Smith one day after his contentious Senate Judiciary Committee testimony, during which he acknowledged approving subpoenas for members of Congress despite understanding that nondisclosure orders prevented them from challenging the seizures under the Constitution's Speech or Debate Clause.
Smith is a longtime prosecutor who most recently served as special counsel overseeing the Justice Department's investigations into President Donald Trump. Earlier in his career, he prosecuted cases before the International Criminal Court and led the DOJ's Public Integrity Section, which brought bribery charges against former Virginia Republican Gov. Robert F. McDonnell in a case where the Supreme Court later unanimously vacated the conviction.
Arctic Frost was the codename for the FBI investigation into Trump's handling of classified documents and alleged efforts to overturn the 2020 election before the probe was handed over to Smith by then-Attorney General Merrick Garland.
Blackburn and her data were swept up in the probe after Smith's team subpoenaed toll records from her and several other Republicans—a move that sparked outrage at Tuesday's Senate Judiciary Committee hearing over whether obtaining the records without notification violated the Constitution.
In May 2023, Smith’s office issued a grand-jury subpoena seeking Verizon toll records, while a separate nondisclosure order barred the company from notifying affected customers—including Blackburn—that its information had been turned over.
While the records did not reveal the contents of conversations, they showed whom Blackburn communicated with, when and for how long, according to the complaint. The lawsuit alleges that Smith’s office obtained a court-approved nondisclosure order without informing the judge that the subpoena sought records belonging to a sitting U.S. senator.
More broadly, Smith’s team issued 197 subpoenas to 34 individuals and 163 businesses seeking information involving at least 430 Republican individuals and entities, according to Senate Judiciary Committee records.
Tuesday’s hearing also began with a scathing rebuke from Chairman Charles Grassley, R-Iowa, who accused Smith’s prosecutors of sweeping up communications between journalists at Fox News and other media organizations and sources connected to the first Trump administration.
For his part, Smith repeatedly hit back at allegations of corrupt or partisan prosecution, saying at one point his "investigation developed proof beyond a reasonable doubt that President Trump engaged in serious crimes against our nation."
Blackburn's suit is being brought by the nonpartisan New Civil Liberties Alliance (NCLA) on her behalf, and the Tennessee senator thanked the group for its partnership.
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Blackburn’s attorneys argue that Smith exercised special counsel powers without lawful constitutional or statutory authorization. Separately, the complaint names Smith in his personal capacity and seeks to hold him liable for alleged violations of Blackburn’s constitutional and civil rights arising from the subpoena and nondisclosure order.
"Jack Smith was illegally named Special Counsel in November of 2022, with Attorney General Merrick Garland handing a private citizen the sweeping powers of a special counsel," NCLA said in a statement obtained by Fox News Digital.
"Then-President Biden did not nominate Smith, nor did the Senate confirm Smith as either Special Counsel or in any other position. And no statute authorized his appointment."
"NCLA’s complaint asks the court to declare Smith’s appointment unlawful under the Constitution’s Appointments Clause and to hold Smith accountable, in his personal capacity, for his gross abuses of power."
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The suit alleges the subpoena violated Blackburn’s constitutional and civil rights and that the nondisclosure order prevented her from challenging the demand under the Constitution’s Speech or Debate Clause.
"This lawsuit is not only about the faux authority granted to Smith through an unconstitutional appointment. It is also about ensuring that the Department of Justice—the very body responsible for enforcing federal law on behalf of our nation—acts only within its constitutional bounds," NCLA counsel L. Margaret Harker said in a statement.
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The lawsuit seeks a declaration that Smith's appointment was unconstitutional, the return and destruction of Blackburn's phone records, and $1 in nominal damages. NCLA says the limited damages request reflects Blackburn's stated goal of obtaining judicial accountability for what the complaint alleges were constitutional violations committed while Smith exercised special counsel powers.
Fox News Digital reached out to Smith's counsel for comment.