Margot Cleveland writes for the Federalist about the importance of newly released documents.
The Biden Administration okayed Special Counsel Jack Smith’s subpoenaing congressional phone records knowing the subpoenas were unconstitutional, emails released last week revealed. That same trove of documents also established the illegality of the nondisclosure orders issued by the courts to prevent the telecommunication providers from alerted the members of Congress of the unconstitutional seizure of their toll records.
Last week, as the nation turned its attention ahead to travel and turkey, Sen. Chuck Grassley, R-Iowa, released another two dozen documents related to the Arctic Frost investigation into President Donald Trump and Special Counsel Jack Smith’s subpoenaing of congressional phone records. A May 17, 2023 email from the Biden Administration’s Department of Justice to Smith’s team proves explosive, with the Public Integrity Section “concur[ring] in the subpoenas for toll records for the identified Members of Congress.”
This email may represent the first public evidence that the Biden Administration’s DOJ knew the special counsel’s office planned to subpoena congressional Republicans. But the scandal is even greater because in “concurring” in Smith’s use of subpoenas to target communications of members of Congress, the DOJ’s Public Integrity Section expressly acknowledged the unconstitutionality of the proposed course of action. …
… Notwithstanding the clarity of the D.C. Circuit’s holding in Rayburn House Office Building, “that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the [Speech or Debate] Clause,” the Biden Administration agreed with Special Counsel Smith’s decision to subpoena the congressional Republicans’ telephone records. The oxymoronically named Public Integrity Section justified its concurrence based on its “understanding of the low likelihood that any of the Members listed below would be charged,” and therefore “the litigation risk should be minimal here.”
In other words, the Biden Administration ignored Smith’s blatant violation of congressional Republicans’ constitutional rights under the Speech or Debate Clause because the special counsel’s office was unlikely to criminally charge any of the congressional Republicans — and therefore, there was little “litigation risk” that a court would exclude the unconstitutionally seized evidence.
